HLR Symposium, Panel 2: Sonja R. West, Press Exceptionalism

Right now reporters have no special protections against trespass, breach of duty of loyalty, having their newsrooms searched, etc.  Journalists who receive leaks can be treated as criminals under some circumstances. No special right of access to places/meetings: if we can’t open the door to everyone we don’t open the door at all.  A number of nonconstitutional avenues offer some legal protection for the press in some areas, but are they sufficient?  Press functions at pleasure of branches of gov’t it’s supposed to be checking.  Yesterday, Reporters w/out Borders ranked US as #46 out of 180 countries in press freedom.

Today, we can all share information widely in a timely fashion.  But there are still differences between the press and an army of individuals with internet connections. Proven track record of publication, established audiences, gathering information, checking the government: press brings unique expertise, resources, track record. Can no longer rely on proxies like medium; non press speakers have access to the same medium, and press uses the same tools as non-press to reach audiences. 

Objection: Privileged status for a few elite speakers? Tech makes it easier for all speakers to do things it takes to reach press status, and that can be done without broadcast license/wealth, so that would equalize rather than trigger these concerns.

What can we do to breathe independent life into the press clause? Accept that the press does deserve special protection; then attempt to figure out what it is.

Ambiguity isn’t the death knell in constitutional interpretation; we’ve had ambiguities and still given constitutional provisions meaning.  Speech clause’s robust protections make linedrawing less vital. Burden at this stage isn’t to answer every hypothetical; constitutional interpretation is case by case. 

Two primary sources of guidance: SCt’s unanimous 2012 decision in Hosanna Taber v. EEOC: whether parochial school teacher was a minister for purposes of the ministerial exception.  Not only did the Ct conclude that it could identify certain individuals/orgs as constitutional right holders fulfilling unique const’l functions, but it also had a duty to do so to give full meaning to the text of the 1A, which gives special solicitude to the rights of religious organizations. There are strong parallels to the press.  Second, looks at statutory attempts to define the press.

Who are the press?  The press are speakers who perform the constitutional functions thereof.  Functional approach.  Ministers: leading prayer, performing religious services.  Functions of the press: various answers—SCt has talked about the press a lot, in dicta, but they’ve said much more than they’ve said about ministers.  Two unique functions: gathering and disseminating news for the public; checking gov’t and the powerful.

How to find the press?  Holistic approach, looking not only to whether actors are fulfilling these functions, and also to other factors, none of which are decisive but seem to be reliable proxies.  Recognition by others as the press (also used in Hosanna Taber: church held teacher out as a minister, a “called teacher” rather than “lay teacher”).   Background of training/education: third-party signalling.  Also suggests that courts look for regularity of publication and established audience; correlates uniquely to constitutional function of press. If press broadcasts and no one hears, are they really functioning as press? This distinguishes press from speech, where we also value autonomy and self-realization. Effective press function requires connecting with audience—ineffective in checking gov’t/powerful if it doesn’t reach audiences; also separates out sporadic commentator who occasionally performs press like functions. Also helps with accountability: while the press checks the gov’t, reputation and readership checks the press.  Without those demands, we lose controls on the journalistic enterprise.

Time and effort are required to be the press. This seems to bother people.  It goes against our instinct to be constitutionally overprotective.  That makes sense for speech, where we don’t want to exclude people/viewpoints. But all speakers would retain speech rights; press would be extra.  Relying on regularity/established readership helps avoid concerns about elitism: more people can reach a broad audience with the internet, even if you don’t have a printing press.  It’s not as important that everyone is the press as it is that everyone has a path to becoming the press.

RonNell A. Jones: Clever to look to religion for insights into meaning of “press,” once there is an institutional component to the 1A.  Hosanna Tabor is attractive but not perfectly apt.  Self-identification enables gaming of a constitutional right: serious problems with incentivizing everyone to self-identify.  Also doesn’t alleviate risks related to external recognition.  Relying on press organizations to identify the press necessarily favors old media; they control membership and educational trajectories. 

Hosanna Tabor: SCt didn’t actually decide what a religion was, but rather who qualifies as minister in what we assume to be a religion.  That might be more useful for who in a news organization is a reporter, but it doesn’t directly address the object of the guaranteed freedom.  If the standard is affiliation with a press organization, we have to figure out what a press organization is, and Hosanna Tabor doesn’t help that; courts have struggled to avoid defining what a religion is, and has put a lot of attention on sincere belief (whether those beliefs occupy a place in life of possessor similar to the place occupied by a belief in God for a more traditional religious person—functional).  Task-related functional question of what the alleged member of the press is doing, and how it parallels what the press at the time of the Founding did, might trump external or internal identification.

Unique pressure created by existence of two religion clauses tugging on each other. Structural element to Hosanna Tabor isn’t present in the press context. 

A heavily functional approach might make more sense in the press context than in the religion context. We don’t really know what we want churches to be doing, while we have a good idea of what we want the press to do (that checking function).

David Anderson: Lots of others gather news and check the powerful. Most of what the news reports is info gathered by others: police, prosecutors, defense lawyers, judicial proceedings.  More complex forms of wrongdoing is usually uncovered by gov’t regulators/investigators.  Fires, floods, natural disasters comes from officials, relief agencies, etc. Economic news: Labor Dep’t, stock exchanges, etc.  Scientists, economists, medical researchers, and other experts whose studies are reported on.  Fashion, spending habits: industry and trade groups, other gov’t statistics.  Press provides valuable perspective, and some of the information is generated because the press is there to report it.

Press also reports news uncovered by enterprising journalists. 

Press is rapidly abandoning scrutiny of gov’t: closing capitol bureaus. Watchdog role largely ceded to interest groups.  NRA/Sierra Club are more likely to serve as a check on public officials than the press.

Press as disseminator: no longer essential.

The press uniquely organizes dialogue: sifting the news; organize conversations among those who see the outlet as sufficiently worthwhile to subscribe/read.  This may seem elitist; they decide what to give the audience, constrained only by judgment/need to hold or expand audience. That’s how filters work: teachers decide what to teach, ministers decide what to preach.

Political parties can perform some of the same functions, as can interest groups. Maybe other mechanisms will evolve. But for now the press is the principal organizer.

Religious protection prevents government meddling in big areas of life; so too with press. We both want the press clause to do work, like protecting confidential sources and providing certain access. The stronger case for constitutional protection is as organizer of democratic dialogue; it’s not dependent on any belief that the press is unique, and insisting that it is unique risks rejection of that factual premise. It’s enough that the press is one entity that serves these functions and that it’s the one the Framers anointed.

West: reiterates that speech provides a backup in case we’re mistaken.  Organizing public dialogue is an important function, and there are others who perform similar functions. But would stick up more for reporters in the trenches—Chris Christie story came initially from local traffic reporters who kept asking questions. No gov’t agency or nonprofit was going to give us that.  Individuals do also gather and disseminate info and check the gov’t. Her argument is that the press is particularly more effective/important.

Corbin: what happens when the press is allied with the powerful?  Do you also consider integrity, accuracy, and independence?

West: Court did say that it wasn’t going to judge whether press was doing a good job; up to readers/reputation.

Anderson: there are a million outlets now; access is less an issue than it was in the age of Tornillo, but the question of abuse of the press is probably more acute because of lowered competition among actual newspapers. New outlets/ease of entry, he hopes, will address this.

Benkler: Imagine the judge at the Manning trial had excluded the journalists, but not the volunteer who tweeted the trial and provided lots of context and analysis.  Would that be a problem?  What about a documentarian who produces a film at sporadic intervals?  What about the kid who took photos of the pepper spraying at UC Davis—if he’s prosecuted for trespass, is he different from anyone who’s employed by a newspaper?

West: my definition of the press is functional. Employment by an institution is only one proxy. Tech has shown us that we have to think functionally for many of these examples. Many bloggers etc. will qualify. People who do it sporadically may not fall into this category, but the alternative is that no one gets the protections the press ought to have.

Chris Dale: The Founders’ press was almost fact-free; there weren’t fulltime professional news gatherers until the 1830s. Polemical, partisan, supplemented with poetry and letters etc.  Also there was a parallel kind of a press in the hit-and-run pamphlets of the era, almost always pseudonymous or anonymous.  DIY operation.  Crappy, but it was what they had.  Insights for our DIY age?

West: objectivity should never be a required part of the definition.  Modern analogy to pamphleteers is bloggers; some are fulfilling the functions of the press—others aren’t.  They’re still protected under the speech clause.  Probably wouldn’t even use the rights at issue here—it’s the repeat players who need the access etc.

Anderson: Printers did catalyze debates.  Community didn’t really exist until it had a newspaper of some kind.  First businesses in frontier communities: whorehouse, saloon, newspaper.  Felt need since the founding.

Marjorie Hein: why not consider “speech” oral versus “press” published? 

Anderson: history suggests otherwise.  All of the colonial/state constitutions protected freedom of press, only 2 freedom of speech.  Press was first, and speech came later.

Jones: Eugene Volokh has looked at technological definitions of press; Mike McConnell has done something similar after Citizens United.  West’s paper requires us to embrace the idea that the press clause isn’t a technological protection but rather an entity protection, and then to fill in that identity.