Keywords
Press clause, First Amendment, Constitution, Freedom of speech, freedom of the press, journalism
Abstract
With the rise of history and tradition at the Supreme Court, scholarship purporting to define historical fact is likely to have outsized influence on the development of constitutional law. Underdeveloped constitutional rights like the First Amendment’s Press Clause are especially susceptible to such influence as they lack a precedential counterweight. While Press Clause jurisprudence is shallow, historical research about the Press Clause is not. For decades, scholars who have considered the Press Clause’s historical meaning have generally concluded that the record is quite vague, and, for that reason, cautioned against absolutist conclusions as to its original understanding. More recently, though, Professor Eugene Volokh has contended that the historical record actually “points powerfully” in one direction: “people during the Framing era likely understood the text as fitting the press-as-technology model—as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry.”
This Article shows that Volokh’s conclusion suffers from insurmountable conceptual, evidentiary, and methodological problems. The most obvious is that this conclusion results from a dichotomy entirely of Volokh’s making: either early Americans understood press freedom to protect everyone indiscriminately or the “institutional press” exclusively. But Volokh offers nothing to support this either-or approach. His conclusion also rested on two unsupported and mistaken assumptions: that the newspaper industry was rela tively unimportant at the Founding and that Founding-era printers were not engaged in journalism. Both assumptions are contrary to academic consensus and historical evidence. As a result of these and other shortcomings, Volokh never considered a third possibility beyond his dichotomy: that people during the Framing era may have understood press freedom as a generally applicable right that had certain context-specific applications, including to journalism.
That third possibility appears to manifest in different ways. Americans invoked press freedom to end prior restraints on newspapers; to confront government discrimination among newspapers; to ensure the wide distribution of newspapers; to contest newspaper taxes; to argue in favor of limiting liability for news; and to protect against the compelled disclosure of sources. It seems the Founding generation recognized these protections not as special dispensations to the press but as necessary to ensure citizens maintained a healthy stock of information to power their republican government. This history undercuts Volokh’s conclusion, has serious implications for the development of Press Clause jurisprudence, and begs for additional research into a more textured understanding of the Press Clause at the Founding.
Recommended Citation
Matthew L. Schafer,
A Third Possibility: The Press Clause at the Founding,
36 Fordham Intell. Prop. Media & Ent. L.J. 297
(2026).
Available at: https://ir.lawnet.fordham.edu/iplj/vol36/iss2/4