Floyd Abrams (aka “Mr. First Amendment”) may be 88 years old, but he continues to pad his resume with ever more impressive accomplishments. Consider, for example, his recent op-ed in The Wall Street Journal (“Beef Up Freedom of the Press”) in which he describes his latest project:
For the past two years, three colleagues and I have worked on a project at Yale Law School to assess whether the constitutional promise of freedom of the press has been fulfilled. After conferring with journalists, media lawyers, historians and other scholars, we conclude that it has not. Our report will be released later this month.
The basic legal problem is that while free speech protections remain generally robust in our nation, the press requires certain additional protections that are not applicable to other forms of speech. For example, when the police break up protests or impose a curfew during times of civil unrest, reporters are often prohibited from staying and reporting on what has occurred. Some police allow journalists to stay, but the Supreme Court has yet to hold that this protection is constitutionally required.
The report will be published in the Journal of Free Speech Law sometime very soon and will simultaneously be disseminated in stand-alone form by the Yale Law School. What follows is the table of contents of the forthcoming report along with its appendix, which lists the workshop participants who helped prepare the report.
The Press Clause: The Forgotten First Amendment
A Report from the Floyd Abrams Institute for Freedom of Expression
Floyd Abrams,Sandra Baron, Lee Levine, and Jacob M. Schriner-Briggs
I. Introduction 2
II. The Press: Importance and Challenges 5
A. The Press Matters 5
B. Legal and Political Challenges 6
Legal Challenges 7
Political Challenges 16
C. Economic Challenges 17
III. The Constitutional Status Quo 18
IV. Revitalizing the Press Clause 23
A. Constitutional Interpretation and the First Amendment 23
Originalism 23
Traditionalism 26
Living Constitutionalism 27
B. Historical Arguments 28
Seditious Libel and the Historical Role of American Printers 28
The Press Clause: Pre- and Post-Ratification 38
Republican Precepts 41
Making Historical Arguments 42
C. Functional Arguments 45
The Press-as-Proxy 45
The Checking Value 46
Informing Public Discourse and Convening the Public Square 47
D. Precedential Arguments 48
Judicial Language: Recognizing Press Functions 49
Judicial Action: Treating the Press Differently 54
E. Analogical Arguments and the Free Exercise Clause 56
V. What Might the Press Clause Do? 57
A. Access 57
B. Newsgathering Conduct 58
C. Editorial Autonomy 61
D. Publication 62
E. Economic Viability 63
VI. Defining the Press 64
A. The Institutional Approach 65
B. The Functional Approach 66
C. Toward a Multi-Factor Test 68
VII. Conclusion 70
Appendix A. List of Workshop Participants 71
Appendix A. List of Workshop Participants
The following participated in the workshops that helped shape the ideas and direction of this report. We are grateful for their assistance and insights. The affiliations listed are for identification purposes only.
Floyd Abrams — Cahill Gordon & Reindel LLP
Joseph M. Adelman — Framingham University
RonNell Andersen Jones — University of Utah School of Law
David S. Ardia — University of North Carolina School of Law
Jack M. Balkin — Yale Law School
Sandra Baron — Yale Law School
Seth D. Berlin — Ballard Spahr LLP
Fabio B. Bertoni — New Yorker Magazine
Erik Bierbauer — NBCUniversal Media, LLC
Vincent Blasi — Columbia Law School
David Bralow — First Look Institute
Bruce Brown — Reporters Committee for Freedom of the Press
Jay Ward Brown — Ballard Spahr LLP
Erin Carroll — Georgetown University Law Center
Erwin Chemerinsky — University of California Berkeley School of Law
Dale Cohen — UCLA School of Law
Jay Conti — Dow Jones & Company, Inc.
Tom Curley — Gannett Co., Inc.
Lucy Dalglish — Merrill College of Journalism, University of Maryland
Jonathan R. Donnellan — The Hearst Corporation
Samuel Fifer — Dentons
Jacob P. Goldstein — Dow Jones & Company, Inc.
John C. Greiner — Faruki PLL
Paul Horwitz — University of Alabama School of Law
Vicki C. Jackson — Harvard Law School
Jean-Paul Jassy — Jassy Vick Carolan LLP
Bruce E. H. Johnson — Davis Wright Tremaine LLP
Karen Kaiser — Associated Press
Jane E. Kirtley — Silha Center for the Study of Media Ethics and Law, University of Minnesota
Heidi Kitrosser — Northwestern Pritzker School of Law
Christina Koningisor — University of California College of the Law, San Francisco
Tom Leatherbury — Southern Methodist University Dedman School of Law
Lee Levine — Ballard Spahr LLP (ret.)
Lyrissa Barnett Lidsky — University of Florida Levin College of Law
For more than a decade, Professor Eugene Volokh’s article — “Freedom For The Press As An Industry, Or For The Press As A Technology? From The Framing To Today” — has been recognized as the authoritative work on the meaning of press freedom at the Founding. In it, Volokh argued that the Press Clause’s reference to “the Press” meant the printing press as a technology rather than as the journalistic enterprise we recognize today. On that basis, he concluded that the Founding Generation understood the Press Clause not as providing special rights for the institutional press but as securing every man’s right to use the printing press. Those in favor of a Press Clause that specially protected the press, he said, must look elsewhere than the text or history of that Clause.
Prof. Matthew Schafer
[Matthew Schafer's] Article calls Volokh’s into doubt. By examining his sources and reasoning, I show how he misunderstood the historical record and drew conclusions unsupported by it. Specifically, Volokh’s inquiry suffered from three problems: conceptual (defining “the Press” does not define the meaning of the Press Clause at the Founding), evidentiary (too little, too unpersuasive), and methodological (he followed none). I then explain that two premises on which Volokh based his article — that the newspaper industry at the Founding was insignificant and practiced no real journalism — are contrary to the historical record and academic consensus. Contrary to Volokh’s view that press-specific rights are a modern invention. I finally provide examples of them from the Founding era and posit that early Americans recognized such rights because they understood them ultimately to inure to the benefit of the public in the form of the news. The news, in turn, helped secure public liberty. I close by calling on Volokh to revisit his thesis.
Co-hosted by FIRE and NYU’s First Amendment Watch, the National Constitution Center’s 2024 First Amendment Summit convenes America’s leading thinkers for a vigorous discussion of the state of free speech in America and around the globe. A keynote conversation about global free speech with Jason Rezaian of The Washington Post will be followed by discussions of free speech on campus and online. Panelists include FIRE Vice President of Campus Advocacy Alex Morey; Nadine Strossen, author of Free Speech: What Everyone Needs to Know; Jonathan Turley, author of the new book The Indispensable Right: Free Speech in an Age of Rage;Mary Anne Franks, author of the new book Fearless Speech: Breaking Free from the First Amendment; Keith Whittington, author of You Can’t Teach That!: The Battle over University Classrooms; and Kenji Yoshino of NYU School of Law.
A welcome reception with access to the National Constitution Center’s new First Amendment gallery will take place from 4:30–5:30 p.m. The program will directly follow from 5:30–7 p.m.
This event is presented in partnership with FIRE and NYU’s First Amendment Watch.
Vanderbilt will host its second annual Free Speech Week, Oct. 15–22, with a variety of events and guest speakers to foster and celebrate its commitment to civil discourse and freedom of expression across campus. Free Speech Week will feature three student debates, a lecture by American Civil Liberties Union President Deborah Archer, and the inaugural Global Free Speech Summit, a two-day symposium with renowned national and international guests advancing efforts for free speech around the globe.
“Vanderbilt’s Free Speech Week emphasizes our university’s enduring commitment to bringing diverse perspectives to campus, inviting our community to engage with complex and timely issues,” Chancellor Daniel Diermeier said. “We’re proud to offer students opportunities to not only hear from experts, but join those conversations through several open forums in the spirit of civil discourse.”
The First Amendment to the U.S. Constitution prohibits Congress from abridging freedom of the press. But, as the printed press has been transformed into mass media with Americans now more likely to get their political information from television or social media than from print, confidence in this important, mediating institution has fallen dramatically.
Movies, in their role as cultural artifacts, have long reflected and influenced those public attitudes, inventing such iconic phrases as “follow the money” from All the President’s Men and “I’m mad as hell and I’m not going to take this anymore” from Network.
Filming the First: Cinematic Portrayals of Freedom of the Press analyzes eighteen films that span from Citizen Kane to Spotlight showing changes in how the press have been portrayed over time, which voices receive the most attention and why, the relationship between the press’s “Fourth Estate” role and the imperatives of capitalism, and how, despite the First Amendment’s seemingly absolute language, the government has sometimes been able to limit what the public can read or view.
YouTube: City Lights Bookstore hosts dialogue on book bans
City Lights in conjunction with PEN America present “From ‘Howl’ to Now: Books Bans in the US 2024.”
Moderated by Ipek S. Burnett with appearances by Ronald K. L. Collins, Summer Lopez, David M. Skover, and Trey Walk. During Banned Books Week, City Lights and PEN America bring human rights advocates and legal experts to discuss the alarming rise in book bans across the country.
They share insights, observations, and methods to counter the suppression of books that address issues pertaining to race, gender, and sexuality. Ever timely, their conversation is a powerful call to action to stand up for the freedom to read.
Ipek S. Burnett, PhD, is the author of A Jungian Inquiry into the American Psyche: The Violence of Innocence and the editor of Re-Visioning the American Psyche: Jungian, Archetypal, and Mythological Reflections. She is a contributing writer at CounterPunch and a Turkish novelist. Dr. Burnett is the Co-Chair of Human Rights Watch Executive Committee in San Francisco and serves on the board of 826 Valencia, a nonprofit organization dedicated to supporting under-resourced students with their writing skills.
Ronald K. L. Collins is the co-founder and co-director (emeritus) of the History Book Festival and co-founder and co-chair of the First Amendment Salons. He is the editor of the weekly online blog First Amendment News and editor of Attention (an online journal on the life and legacy of Simone Weil) He is also the Lewes Public Library’s Distinguished Lecturer. He is the co-author of numerous books that include: “First Things First: A Modern Coursebook on Free Speech Fundamentals” as well as the book “MANIA: The Story of the Outraged and Outrageous Lives That Launched a Cultural Revolution”. Together with David M. Skover he co-authored the book “The People v. Ferlinghetti: The Fight to Publish Allen Ginsberg’s Howl”.
Summer Lopez is PEN America’s Chief Program Officer, Free Expression. She has been with the organization since November 2017 and oversees PEN America’s advocacy, research, and programming in defense of free expression in the U.S. and globally. Lopez has worked to advance democracy and human rights in the nonprofit and government sectors, including for eight years with the U.S. Agency for International Development and three years with The AjA Project, a San Diego-based nonprofit providing participatory media programming for immigrant and refugee youth. She has lived and worked in Zimbabwe, Egypt, Nepal, India, and Ghana, and holds a BA from Harvard University and a master’s in public affairs from the Princeton School of Public and International Affairs.
David Skover is the former Fredric C. Tausend Professor of Law at the Seattle University School of Law. He has taught, wrote, and lectured in the fields of federal constitutional law, federal courts, free speech & the internet, and mass communications theory. He has also taught at Seattle University School of Law and was a visiting professor at the University of Indiana Law School in Bloomington. He has authored numerous books together with Ronald Collins which include: The Trials of Lenny Bruce, Mania: The Story of the Outraged and Outrageous Lives, On Dissent: Its Meaning in America, and of course: “The People v. Ferlinghetti: The Fight to Publish Allen Ginsberg’s Howl.”
Trey Walk is democracy researcher and advocate for Human Rights Watch’s US Program. In this role Trey documents and challenges threats to voting rights, access to truthful information, and civic engagement, and he collaborates with movements working to promote robust multiracial democracy in the United States. He has previously worked with Groundwork Project and served as project manager at the Equal Justice Initiative.
WATCH VIDEO: CITY LIGHTS LIVE! FROM HOWL TO NOW: BOOK BANS IN THE U.S. 2024
‘So to Speak’ podcast on deepfake laws, hate speech, and mask bans
The FIRE team discusses Tim Walz's controversial comments on hate speech and "shouting fire in a crowded theater." We also examine California's AI deepfake laws, the punishment of tenured professors, and mask bans.
Joining us are:
Aaron Terr, FIRE's director of Public Advocacy;
Connor Murnane, FIRE's Campus Advocacy chief of staff; and
Adam Goldstein, FIRE's vice president of strategic initiatives.
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam).”)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.
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