Q&A: Stephen Gillers on the Constitutional Protection of the Free Press

Journalism Under Fire issues an extraordinarily timely five-alarm warning. It is a forceful response to those who today—and in the future—would demean and disparage the essential importance of a free press to American democracy.

~Katrina vanden Heuvel, editor and publisher, The Nation

This week we are featuring Journalism Under Fire: Protecting the Future of Investigative Reporting, by Stephen Gillers. In this book, Gillers proposes a bold set of legal and policy changes to strengthen the freedom of the press and support the free press as a public good, including protecting news gathering and confidential sources. Journalism Under Fire weaves together practice, law, and policy into a program that can ensure a future for investigative reporting. Today, we are happy to present a Q&A from the book’s author.

Remember to enter our drawing for a chance to win a free copy of the book!

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Q: The First Amendment prohibits laws “abridging the freedom of speech, or of the press.” Yet you claim that the Supreme Court has harmed American democracy by reading the words “or of the press” out of the Constitution. When did it do that?

Stephen Gillers: At 10 a.m. on January 21, 2010, the Supreme Court announced its controversial 5-4 opinion in Citizens United v. Federal Election Commission. That opinion is controversial for holding unconstitutional restrictions on corporate and union expenditures to influence a federal election. But in writing for the Court, Justice Anthony Kennedy gratuitously quoted this sentence from a 1990 dissent by Justice Antonin Scalia: “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.”

Q: Do you think that Kennedy’s statement was an accurate one? In not, can you tell us about a time in which the Supreme Court protected the role of the press?

SG: While the Court has held that particular constitutional privileges do not belong only to the press alone, it has not ruled, let alone “consistently,” that the press did not have “any constitutional privilege beyond that of other speakers.” Between the 1930s and 1970s, the Court embraced the importance of the press to American democracy. For example, in 1966 it wrote: “The Constitution specifically selected the press…to play an important role in the discussion of public affairs,” adding that “the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials.” As far back as 1938, the Court emphasized that the Press Clause protection is not limited to the institutional press but “comprehends every sort of publication which affords a vehicle of information and opinion.”

Q: How did Kennedy explain a departure from earlier Court decisions, and what reason did Kennedy give for treating the Free Press Clause as a nullity?

SG: Kennedy did not provide an explanation. He just ignored them. He wrote that “with the advent of the Internet and the decline of print and broadcast media…the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Kennedy is saying that because today anyone can do what the press has historically done, the Free Press Clause is no longer needed.

Q: Aren’t the lines in fact “blurred,” as Kennedy wrote?

SG: Only if the Free Press Clause is read narrowly to refer to the legacy press and to exclude, for example, online publications and blogs. Kennedy created a false dichotomy based on institutional status, ignoring precedent that looked to a writer’s purpose. The line would not be “blurred” if the “others who wish to comment” can also be the press.

Q: If institutional affiliation is not the test, don’t we need another definition of “the press?”

SG: Yes, and we have several, including in-state shield laws, which protect journalists from having to disclose confidential sources, freedom of information acts, and decisions of lower federal appeals courts. Combining these, we can say that a work is within the protection of the Free Press Clause if it was undertaken at the outset with the primary intent to investigate events or persons and to procure material in order to disseminate to the public news or information concerning matters of public interest. The writer need not be affiliated with a news organization. She must be independent of—not subject to the control of—the subject of the work and she must exercise editorial judgment.

Q: What about those who want to express their views but who don’t qualify as the press? Where do their rights come from?

SG: Those who do not qualify as the press get their rights from the First Amendment’s Free Speech Clause, which grants very broad freedoms for most any form of communication one can imagine. That means the press gets greater rights than everyone else.

Q: Why should the press have greater rights than anyone else?

SG: Because the press works for everyone else by providing information we need for self-government. In 1975, the Court wrote that in “a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.

Q: What greater protections might the Free Press Clause afford beyond those guaranteed by the Free Speech Clause?

SG: Confidentiality for sources for starters. A few lower federal courts have relied on the Press Clause to recognize a privilege not to reveal a writer’s sources. The clause can help define news-gathering techniques that might otherwise violate state laws. It can be cited to entitle journalists to visit prisons and reformatories and to report from war zones. It can afford heightened protection against searches of newsrooms and wiretapping of journalists. These are just a few examples of what a robust Press Clause can offer.

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