Freedom of Expression: Is There a Difference Between Speech and Press?

Freedom of Expression: Is There a Difference Between Speech and Press?

Use of the single word “expression” to reach speech, press, petition, association, and the like, raises the central question of whether the free speech clause and the free press clause are coextensive; does one perhaps reach where the other does not? It has been much debated, for example, whether the “institutional press” may assert or be entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”357 But as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”358

357 Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Stewart initiated the debate in a speech, subsequently reprinted as Stewart, Or of the Press, 26 HASTINGS L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 798 (1978) (Chief Justice Burger concurring).

358 435 U.S. at 798. The Chief Justice’s conclusion was that the institutional press had no special privilege as the press.

Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or to give the press access to information that the public generally does not have.359 Nor in many respects is the press entitled to treatment different in kind from the treatment any other member of the public may be subjected to.360 “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”361 Yet, it does seem clear that to some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Stewart’s word.362 What difference such “sensitivity” might make in deciding cases is difficult to say.

359 Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).

360 Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).

361 Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).

362 E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at 568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582-84 (Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). Yet the Court has also suggested that the press is protected in order to promote and to protect the exercise of free speech in society at large, including peoples’ interest in receiving information. E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453 U.S. 367, 394-95 (1981).

The most interesting possibility lies in the area of First Amendment protection of good faith defamation.363 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from liability for libel or slander.”364 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,365 but the Court’s decision that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state regulations causes the evaporation of the supposed “conflict” between speech clause protection of individuals only and of press clause protection of press corporations as well as of press individuals.366 The issue, the Court wrote, was not what constitutional rights corporations have but whether the speech that is being restricted is expression that the First Amendment protects because of its societal significance. Because the speech concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti’s emphasis upon the nature of the contested speech being political, it is clear that the same principle, the right of the public to receive information, governs nonpolitical, corporate speech.367

363 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See discussion of “Defamation,” infra.

364 Stewart, Or of the Press, 26 HASTINGS, L. J. 631, 633-35 (1975).

365 In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979), the Court noted that it has never decided whether the Times standard applies to an individual defendant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by the Court.

366 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978). The decision, addressing a question not previously confronted, was 5-to-4. Justice Rehnquist would have recognized no protected First Amendment rights of corporations because, as entities entirely the creation of state law, they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices White, Brennan, and Marshall thought the First Amendment implicated but not dispositive because of the state interests asserted. Id. at 802. Previous decisions recognizing corporate free speech had involved either press corporations, id. at 781-83; and see id. at 795 (Chief Justice Burger concurring), or corporations organized especially to promote the ideological and associational interests of their members. E.g., NAACP v. Button, 371 U.S. 415 (1963).

367 Commercial speech when engaged in by a corporation is subject to the same standards of protection as when natural persons engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533-35 (1980). Nor does the status of a corporation as a government-regulated monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566-68 (1980).

With some qualifications, therefore, it is submitted that the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any, hazard of missing significant doctrinal differences.

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Last modified: June 9, 2014