From the Volokh Conspiracy, a post that should help next week's 2301 discussion of the Freedom of the Press. The author discusses the original issues associated with teh freedom of the press:
“[T]he freedom ... of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like—so argue some judges and scholars. “The Press Clause singles out the press as an institution entitled to special protection under the umbrella of the First Amendment.” And this argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.
The four Citizens United v. FEC dissenters, for instance, asserted that “[t]he text and history” of the Free Press Clause “suggest[] why one type of corporation, those that are part of the press, might be able to claim special First Amendment status.” Therefore, the dissenters argued, restrictions on the Free Speech Clause rights of non-press entities can be upheld without threatening the special Free Press Clause rights of the institutional press.
Likewise, Justice Stewart famously argued that the Free Press Clause should be read as specially protecting the press-as-industry, because “[t]he primary purpose of the constitutional guarantee of free press was ... to create a fourth institution outside the Government as an additional check on the three official branches.” Justice Powell likewise reasoned, referring to the press-as-industry, that “[t]he Constitution specifically selected the press ... to play an important role in the discussion of public affairs.”
Justice Douglas similarly argued that professional journalists are constitutionally entitled to a privilege not to testify about their sources, because the press-as-industry “has a preferred position in our constitutional scheme.” And some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press.
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Here's the full article.
