The Constitution’s free expression clauses are famously bare-bones: “Congress shall make no law … abridging the freedom of speech, or of the press.”Footnote 1 The historical drafting record is likewise thin – the constitutional framers spent little time debating press protections at the Constitutional Convention.Footnote 2 Yet post-ratification, the paths of these two provisions have diverged. The Supreme Court has devoted substantial attention to the Speech Clause, interpreting it broadly to cover an array of activities. In contrast, it has largely ignored the Press Clause, reading it mostly as ancillary to the ever-expanding set of speech protections.Footnote 3 The Press Clause has little independent meaning today.Footnote 4
Yet imagine a different text, with a different drafting history. What if the Constitution provided that “the liberty of the press shall forever remain inviolate,”Footnote 5 or that freedom of the press is “one of the invaluable rights of man?”Footnote 6 What if the Press Clause were a stand-alone provision, or the discussion of the meaning and scope of speech and press provisions had figured largely into the constitutional drafting debates?Footnote 7 Would protections for the press look different today?
Such language and history do exist – in state constitutions. All fifty states have adopted constitutions that explicitly shield freedom of speech and the press.Footnote 8 And nearly all of them contain language that is substantially different from the language of the First Amendment.Footnote 9 These state constitutions contain fifty separate speech and press provisions, each with different drafting processes and different histories of judicial interpretation.Footnote 10 Moreover, state constitutions contain myriad additional constitutional provisions – many without federal analogs – that both privilege and protect the press.Footnote 11
Since the 1970s, members of the press have advocated for increased constitutional protections under the First Amendment.Footnote 12 Some of these efforts have been successful. Yet these rights have generally been extended to the public as a whole.Footnote 13 The Supreme Court has mostly rejected calls to read the First Amendment to extend exclusive constitutional protections for the press.Footnote 14 This has left the press without particularized constitutional shields for many newsgathering activities, like accessing prisons or shielding confidential sources.Footnote 15
There are reasons to revisit these precedents today. The economic and political power of the institutional media has diminished in recent years, with local press institutions disappearing at alarming rates.Footnote 16 At the same time, attacks on journalists have increased.Footnote 17 In response to these growing pressures on the institutional media, scholars have turned their attention back to the First Amendment, asking, for example, whether the Press Clause could be “revitalized” or “awakened” to offer a more abundant set of rights and privileges for the press.Footnote 18
Earlier press law scholarship of this type focused on the meaning and scope of the Press Clause, including whether its drafters intended only to protect against prior restraints.Footnote 19 Professor David Anderson’s landmark article from 1983 argued that the drafters intended the First Amendment to sweep more broadly. He contended that they envisioned constitutional press protections to operate as a structural check against governmental abuse.Footnote 20 More recent Press Clause scholarship has built upon this work, taking up related questions, such as how to define “the press” for constitutional purposesFootnote 21 and how the Supreme Court’s perceptions of the press have changed over time.Footnote 22
This work is rich and thoughtful, yet it focuses almost exclusively on the federal Constitution.Footnote 23 This chapter, in contrast, turns attention to the “other” press clauses, along with state constitutional speech protections and various other state constitutional provisions implicating the press. It asks how these various state-level protections might be utilized to protect the institutional press in new or better ways.Footnote 24 And it asks how the lessons of these state experiences might be applied back to the federal context.Footnote 25 In this way, the chapter plugs into two separate strands of scholarship.
The first is the small but expanding literature exploring the scope and meaning of the federal Press Clause.Footnote 26 The second is a larger body of work examining how state constitutional liberties offer expanded rights protection beyond what the federal Constitution guarantees.Footnote 27 This movement to expand state constitutional rights is often described as “new judicial federalism.” Supreme Court Justice William Brennan is widely credited as its founder, at least in the movement’s modern form.Footnote 28 In his landmark 1977 Harvard Law Review article, State Constitutions and the Protection of Individual Rights, Brennan warned that the steady expansion of federal individual liberties’ protections during the Warren Court had come to an end.Footnote 29 In the face of this federal rights retrenchment, he argued, state courts must take up the mantle of the progressive cause and construe state constitutional rights provisions to fill in these federal constitutional gaps. He urged state supreme courts to break with federal judges, even when interpreting analogous state constitutional provisions.Footnote 30
Many did so. If the promise of state constitutional rights protection was overlooked at the time of Brennan’s call to action, that is no longer true today. State courts have spent decades untangling the relationship between state and federal constitutional rights provisions.Footnote 31 They have developed a rich body of case law cataloging when and how state courts have interpreted state constitutional individual liberties provisions more expansively than their federal counterparts, as well as when they should.Footnote 32 Scholars have also developed typologies of different methodological approaches to state constitutional rights interpretation.Footnote 33 A wide variety of methods have been adopted, from “lockstep” interpretations adopting federal court constructions wholesale to “primacy” approaches that emphasize independent state construction and give little weight to federal interpretations of equivalent provisions.Footnote 34
This chapter mostly sidesteps these methodological debates.Footnote 35 It focuses instead on the specific context of state constitutional press protections.Footnote 36 Much of the “new judicial federalism” scholarship is subject specific. The courts’ early jurisprudence in this area largely focused on the scope of criminal law protections, for example.Footnote 37 The Warren Court steadily expanded constitutional protections for criminal defendants, and in the face of the U.S. Supreme Court’s retreat from this project, state supreme court judges asked whether state constitutions might fill the gap.Footnote 38 The legal scholarship followed suit.Footnote 39
Since then, different substantive state constitutional provisions have captured judicial and scholarly attention at different moments. Today, for example, many advocates and scholars have turned to state constitutional privacy provisions as a potential source of reproductive rights protection in the wake of the Supreme Court’s elimination of federal abortion protections in Dobbs v. Jackson Women’s Health Organization.Footnote 40 And in the face of the growing climate crisis, advocates have looked to state constitutional provisions addressing public health rights or the right to a healthy environment as a promising source of new legal protection.Footnote 41 As the Supreme Court moves further to the right,Footnote 42 progressive scholars and advocates will most likely continue to look to state constitutions as an alternative source of rights protection.Footnote 43
In the decades since Brennan’s article, scholars and judges have also looked to state constitutional speech and press provisions.Footnote 44 They have asked whether these protections sweep more broadly than the First Amendment Speech and Press Clauses, as well as whether they should.Footnote 45 State courts have also explored the meaning of state free expression protections when construing state constitutional speech and press provisions.Footnote 46 But more could be done. Press advocates haven’t always utilized these press and other state constitutional provisions effectively.Footnote 47 And state courts have often construed state constitutional free expression provisions in lockstep with the First Amendment, despite significant textual and historical distinctions.Footnote 48
Further, legal scholars have largely overlooked state constitutional protections for the press. Some have compared the development of free expression rights in the state versus federal constitutional contexts for specific states.Footnote 49 Yet the scholarship examining state constitutional protections for the press is more limited.Footnote 50 This is true even though these state constitutional press protections offer crucial benefits. State constitutions can provide protection where the U.S. Constitution has failed. Many state constitutional press and speech provisions already sweep more broadly than the First Amendment under current state precedent. And many more could be reasonably construed this way.Footnote 51 Moreover, state constitutions are more easily amended in response to new or changing threats to the press.Footnote 52
The lessons of state constitutional law can also be useful for advocates of expanded federal press protections. Many of the policy arguments advanced by the U.S. Supreme Court in the course of rejecting particularized rights for the press can be challenged by the experience of the states. The state constitutional experience offers alternative law and policy choices, distinct from the path the U.S. Supreme Court has chosen under the First Amendment. Mining these state law histories can be helpful for refuting the Court’s policy-oriented claims and imagining alternative futures for federal constitutional press protections.Footnote 53
This chapter proceeds in two sections. Section 13.1 outlines the text, drafting history, and interpretive precedents of federal and state press and speech clause protections, focusing attention where state courts have interpreted state constitutional press protections to sweep more broadly than the First Amendment. Section 13.2 examines the future of federal and state press and speech clauses. It identifies state constitutional provisions and precedents that could be seized upon by advocates to expand protections for the press. And it provides examples of ways that the experiences of the states can be used to bolster arguments for broader press protections under federal law.
13.1 Constitutional Protections for the Press
Federal and state constitutions articulate very different textual protections for the press. This is true in terms of both press and speech clauses and more ancillary provisions like rights of information access. These state constitutions also have vastly different histories of drafting and judicial interpretation. This part maps out these distinctions across the federal and state contexts, focusing attention on the substantive areas where the states have extended press protections beyond what the First Amendment allows.
13.1.1 Constitutional Text
The Press Clause of the First Amendment provides that “Congress shall make no law … abridging the freedom … of the press.”Footnote 54 It is paired with the Speech Clause, set off by semi-colons from both the religious clauses and the assembly and petition clauses that follow.Footnote 55 The U.S. Supreme Court has extended few, if any, substantive rights protections under the Press Clause alone.Footnote 56 Rather, press-related protections have been extended through some combination of speech and press rights. The Court has also repeatedly declined to extend exclusive constitutional protections enjoyed by press speakers alone.
In contrast, the states have taken a different approach. All fifty state constitutions extend protections for freedom of speech and the press.Footnote 57 But only two states – Hawaii and South Carolina – have adopted free expression provisions that track the language of the First Amendment.Footnote 58 The other forty-eight state constitutions depart from the federal model.Footnote 59 Many do so in ways that suggest strong protections for the press.
For example, many of these state free expression provisions protect a broader set of substantive rights than those contained in the First Amendment. Forty states protect the right to “speak, write, and publish” as three distinct components of freedom of expression.Footnote 60 A few state constitutions also make explicit the democratic role of free press provisions, specifying that the printing press must be free to those who wish to “examine” the work of “any branch of government.”Footnote 61 Still others protect “the free communication of thought and opinion,” which may encompass a broader set of activities than speech and press protections alone.Footnote 62
Protections for the press are also articulated in stronger terms in some state constitutions. For example, Kansas’ speech and press clause provides that “the liberty of the press shall be inviolate.”Footnote 63 Virginia’s stipulates that “freedoms of speech and of the press are among the great bulwarks of liberty and can never be restrained except by despotic governments.”Footnote 64 And Mississippi’s provides that “freedom of speech and of the press shall be held sacred,”Footnote 65 elevating free expression provisions to those “worthy of religious veneration.”Footnote 66
There are notable structural distinctions as well. Most state constitutions protect speech and press in a single stand-alone provision. Only two pair free expression with religious rights.Footnote 67 And one state, Rhode Island, protects the rights of speech and of the press in separate constitutional sections.Footnote 68 Such structural separation further supports construing press and speech protections separately rather than as coextensive rights.
Most state constitutions also articulate press and speech rights in positive terms. Only a handful contain an exclusively negative expression of these rights, analogous to the First Amendment’s prohibition that “Congress shall make no law” abridging the freedom of speech or the press.Footnote 69 The rest articulate protection at least in part in positive terms. Around three-quarters of state constitutions provide that “every person” has an affirmative right to speak and publish freely.Footnote 70 And about half contain both negative and affirmative articulations. They provide that “every person shall be at liberty to speak, write or publish his opinions on any subject.” And they provide that “no law shall ever be passed curtailing the liberty of speech or of the press.”Footnote 71
State courts have often found this negative/positive rights distinction salient when interpreting the scope of state constitutional press shields.Footnote 72 They have pointed to these affirmative constructions of state constitutional provisions as evidence of an intentional decision by state constitutional drafters to provide broader free expression protections than those provided by the First Amendment. For example, New York’s highest court has interpreted the state’s constitution to offer stronger defamation protections for statements of opinion than the U.S. Constitution provides.Footnote 73 In doing so, it reasoned that these state speech and press provisions “reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms.”Footnote 74
This is not to say that all state constitutional textual distinctions trend in this same direction, toward broader protection. Some contain more watered-down articulations of free expression rights. For example, a handful provide that the liberty of the press “ought” not be violated, in contrast with the more forceful prohibition contained in the First Amendment.Footnote 75 Many state constitutions also spell out the limits of these protections more explicitly than the First Amendment. For instance, forty state constitutions include language specifying that those who exercise speech and press rights are “responsible for their abuse.”Footnote 76 And around half of state constitutional free expression provisions stipulate that truth must be accepted as a defense to libel, which some courts have read to be rights-contracting.Footnote 77 Yet overall, many of these textual distinctions and departures in state constitutions suggest expanded state-level protections for the press in comparison to the First Amendment.
13.1.2 Constitutional Histories
The First Amendment drafting history is thin. The drafters spent little time debating proposed press protections at the Constitutional Convention.Footnote 78 And the debates of the state ratifying conventions often yielded conflicting conclusions.Footnote 79 The drafters almost certainly intended to restrict prior restraints against speech.Footnote 80 But consensus has splintered from there over the original meaning of the First Amendment.Footnote 81 There is a vast literature plumbing these drafting histories for evidence of the federal constitutional drafters’ original intent when enacting these constitutional press and speech protections.Footnote 82 Ultimately, much of the confusion likely stems from the drafters’ own differing visions of speech and press protections.Footnote 83
When it comes to the drafting histories of the fifty state free expression provisions, however, the interpretive task becomes even more difficult. There are fifty state press clauses contained in fifty separate state constitutions. Collectively, these state constitutions have been amended more than 7,000 times.Footnote 84 It is impossible to provide a detailed accounting of each of these histories. They are too varied, too long, and too complex. Yet even a cursory review yields some insights.
The earliest state constitutional press clauses were drafted during the revolutionary period, and these state constitutional provisions reflect the drafters’ preoccupation with checking government abuse.Footnote 85 The colonists chafed at British control over the press, and revolutionary leaders seized upon the issue of press freedom both to shore up support for the cause and to distinguish themselves from British rule.Footnote 86 They declared freedom of the press to be “a great bulwark of liberty,”Footnote 87 necessary for the “ready communication of thoughts” among citizens.Footnote 88 And nine of the eleven state constitutions adopted during the Revolutionary War contained a press clause.Footnote 89 These state constitutions were “revolutionary manifestos.”Footnote 90
The state constitutional texts embody this revolutionary history. Pennsylvania’s 1776 Declaration of Rights, for example, provides that “the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.”Footnote 91 Virginia’s 1776 Declaration of Rights declares that “freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”Footnote 92 And New Hampshire’s 1783 Bill of Rights provides that “the liberty of the press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.”Footnote 93 As Professor Anderson has argued, these early press clause provisions suggested that press freedom operated as a structural democratic check against governmental abuse.Footnote 94
State constitutional drafting documents provide further support for this proposition. For example, William Cushing, the chief justice of the Massachusetts Supreme Court and one of the drafters of the Massachusetts Constitution, exchanged a series of letters with John Adams in 1789 about Massachusetts’ press clause.Footnote 95 They asked whether truthful criticism of government could be punished under this provision. Both men concluded it could not, and they rooted their decisions in structural democratic concerns.Footnote 96 “The liberty of publishing truth can never effectually injure a good government,” Cushing argued, but it might restrain a despotic one.Footnote 97 Adams agreed. Otherwise, “how are the characters and conduct” of elected representatives “to be known by their constituents, but by the press?”Footnote 98
This is not to say that the drafters and ratifiers of these state constitutional press provisions envisioned a wholly expansive set of rights. To the contrary, they tolerated substantial punishment of printers who supported the British cause.Footnote 99 John Adams signed the Sedition Act, and William Cushing enforced it.Footnote 100 These drafting histories are voluminous and contain many contradictions.Footnote 101 Yet the authors of these state press clauses were expressly concerned with the implications of a free press for a functioning democracy. As Professor Anderson put it, the drafters “may not have been sophisticated enough to realize that true freedom of expression must include freedom for even the most dangerous ideas, but they had seen the connection between press criticism and political change.”Footnote 102
In contrast, the language of the First Amendment became abstracted away from these revolutionary era claims over the course of its drafting process. The initial “bulwark of liberty” language was dropped from the First Amendment text. The speech and press protections were then joined with other expressive and religious liberties.Footnote 103 Yet many state constitutions still contain these original declarations explicitly tying freedom of the press to the preservation of democratic self-governance and the prevention of governmental abuse.Footnote 104 The text and histories of these early press clauses suggest that these state constitutional drafters viewed the press as a key check against the threat of an oppressive government.Footnote 105
Another key theme to emerge from these fifty distinct drafting histories is that state constitutions have been repeatedly altered and replaced over the course of 200 years. They have been amended at a much higher rate than the federal Constitution – an average of 115 times, versus the 27 amendments of the U.S. Constitution.Footnote 106 Of the original thirteen colonial constitutions, only Massachusetts’ survives today. The rest have been replaced one or more times.Footnote 107
This makes the task of ferreting out original intent difficult. Should a judge consider only the statements of the original drafters? What if other parts of the constitution were changed but the free expression clause remained intact? What does such legislative silence tell us? Such questions not only make it more complicated to identify original meaning but also make it more difficult to offer a coherent story about the drafting histories of these fifty state constitutions. Each state’s constitutional drafting history merits its own book-length treatment. This chapter does not attempt to offer a comprehensive account, nor does it provide a cohesive or overarching story of free expression in the states.Footnote 108 Instead, it focuses attention on a handful of substantive areas where press privileges and freedoms have been most strongly implicated.
13.1.3 Constitutional Interpretations
State courts have diverged in their interpretations of state constitutional press protections. This part surveys these precedents, focusing attention on the substantive areas where state constitutional texts have yielded more expansive protections for the press than the First Amendment. These include protections for confidential sources, recognition of constitutional rights of access, prohibitions against prior restraint, and protections against liability for defamation.Footnote 109
Not all of these protections are press specific. Some, like protections against prior restraints and defamation liability, extend to all speakers. Yet in practice, they tend to have an outsized effect on the press. Courts have long assumed that press speakers are uniquely at risk when it comes to both defamation lawsuits and the effects of a prior restraint on publication.Footnote 110
13.1.3.1 Reporter’s Privilege
The U.S. Supreme Court has repeatedly rejected the press’s claims to First Amendment-based protections for newsgathering processes, including protection for reporters’ confidential sources and information. In its landmark 1972 decision Branzburg v. Hayes, the Court addressed the claims of three reporters who refused to comply with a grand jury subpoena to reveal confidential information and sources.Footnote 111 The journalists argued that such disclosures would imperil the journalist-source relationship and impede the free flow of information to the public. They appealed to the Court to recognize a constitutionally based evidentiary privilege for journalists’ confidential sources and other confidential information.Footnote 112
The Supreme Court declined to do so, at least in the grand jury subpoena context. It reasoned that such a privilege does not appear in the text of the Constitution.Footnote 113 Nor had the courts recognized such a privilege at common law.Footnote 114 For more than 200 years, the Court wrote, the press had “flourished” without a First Amendment-based evidentiary shield.Footnote 115 The press was “far from helpless to protect itself” and didn’t require further constitutional protection.Footnote 116 “We are asked to create another [constitutional privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” the Court wrote. But “this we decline to do.”Footnote 117
In the decades since, many federal circuits have recognized a First Amendment-based privilege in other contexts. They have narrowed the holding in Branzburg to grand jury subpoenas, recognizing a qualified constitutional or common-law privilege in other judicial proceedings.Footnote 118 But they have splintered widely in their interpretations of this privilege, leading to a patchwork and inconsistent set of case law from one circuit to another.Footnote 119 For example, five circuits have recognized a qualified First Amendment privilege in some criminal cases. Two have extended the qualified shield only in some civil contexts. And one – the U.S. Court of Appeals for the Seventh Circuit – has held there is no reporter’s privilege for nonconfidential material.Footnote 120
The states have pursued a different approach. Some have extended greater state constitutional protections for reporters’ confidential information and sources. California, for example, has enshrined the privilege directly into its state constitutional text. Article I, § 2 of the state constitution provides that members of the press may not be held in contempt for refusing to disclose either their confidential sources or their unpublished information gathered in the course of the reporting process.Footnote 121
The history of this provision is instructive. The California legislature enacted a statutory shield law in 1935.Footnote 122 But the courts began to push back, arguing that the law interfered with the judiciary’s inherent constitutional authority to execute its judicial duties.Footnote 123 Judges began to hold reporters in contempt, in spite of the requirements of the shield law.Footnote 124 The public responded by passing a ballot initiative in 1980 constitutionalizing the privilege.Footnote 125 The pamphlet accompanying the ballot explained to voters that the Supreme Court had declined to recognize a First Amendment-based privilege in Branzburg and therefore enhanced state constitutional protection was needed. “If our democratic form of government – of the people, by the people – is to survive, citizens must be informed,” the pamphlet stated. “A free press protects our basic liberties by serving as the watchdogs of our nation.”Footnote 126
While California is the only state to extend an explicit constitutional privilege for journalists, other state supreme courts have recognized an implicit privilege that derives from state speech and press protections.Footnote 127 Many others have enacted statutory shields, recognized a common law privilege, or extended protection through the rules of evidence.Footnote 128 These state privileges are often roughly equivalent to the scope of the qualified First Amendment privileges extended by the federal appellate courts.Footnote 129 But their boundaries can be distinct.Footnote 130 Moreover, these state provisions operate as an independent source of protection. This is significant, because the federal courts have been more reluctant in recent years to read Branzburg as extending constitutional protections for the press.Footnote 131 If the federal courts do roll back the scope of federal constitutional protections, such state-level shields will assume greater importance.Footnote 132
13.1.3.2 Rights of Access
Throughout the 1970s, journalists petitioned the Supreme Court to recognize First Amendment rights to access government information. The Court repeatedly declined to do so.Footnote 133 In the 1978 case KQED v. Houchins, for example, the Court rejected the press’s claim to a First Amendment right to access prison facilities.Footnote 134 After multiple inmates died at a prison in California, the county sheriff curtailed journalists’ access to the facilities.Footnote 135 A group of journalists sued, arguing that they had a constitutional right to access the prison. The Court denied the claim, holding that there is no First Amendment right of access to “all sources of information within government control.”Footnote 136
Two years later, in Richmond Newspapers v. Virginia, the Court did recognize a First Amendment right to access criminal trials.Footnote 137 But it made clear that the privilege extended to the public as a whole rather than to the press exclusively.Footnote 138 Moreover, the lower courts have largely limited the privilege to the judicial branch.Footnote 139 With a few exceptions for trial-like administrative proceedings like immigration hearings, the lower federal courts have not extended the right of access to the executive or legislative branches.Footnote 140
Many states, in contrast, have extended constitutional access rights more broadly. A handful have enshrined rights of information access directly into the state constitutional text. At least six state constitutions contain explicit “right-to-know” provisions, which impose constitutional obligations on governments to provide public access to government records and proceedings.Footnote 141 These rights are often articulated in expansive terms. Louisiana’s constitution, for example, provides that “no person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”Footnote 142 These state right-to-know provisions can be used by courts to expand access rights beyond the federal minimum. Courts in these states often reference these constitutional provisions to underscore the sweeping nature of the transparency obligations imposed on state and local governments.Footnote 143
Some state constitutions contain broader legislative transparency requirements as well. For example, Article I, § 5 of the U.S. Constitution provides that legislators may close proceedings when “in their Judgment” the discussion “require[s] Secrecy.”Footnote 144 But equivalent state provisions do not always permit state legislatures this same discretion to close legislative doors.Footnote 145 Further, some state legislative access provisions expressly contemplate the unique position of the press. Alabama’s constitution, for example, provides that under certain conditions the legislative houses may exclude the public from its proceedings, but they may not exclude “representatives of the press.”Footnote 146
There are other salient distinctions between federal and state constitutional access provisions as well. While the federal constitutional right of access is derived from the text of the First Amendment,Footnote 147 for example, roughly half of state constitutions contain express “open courts” provisions.Footnote 148 State courts, moreover, have often interpreted these requirements broadly. For instance, in Washington, the courts have held that the constitutional open-courts provision requires judges to proceed through a rigorous five-step analysis before they may exclude the public from access to certain court proceedings.Footnote 149
State rights of access may also reach a greater set of government actors. The First Amendment right of access is limited to the judicial branch.Footnote 150 But many state constitutional access provisions extend further. At times this is explicit. For example, Missouri’s constitution expressly states that legislative records are public records.Footnote 151 Voters made the change in 2018 after the legislature tried to exempt itself from the state public records law.Footnote 152 And Kentucky’s constitution provides that a governor who grants pardons or commutes sentences must make the supporting records available to the public.Footnote 153 Such provisions make clear that constitutional access requirements extend beyond the judicial branch.
Finally, implicit state constitutional rights of access – those that derive from explicit press and speech provisions – may also sweep more broadly than the federal constitutional right of access. For example, the Utah Supreme Court has held its state constitution requires additional factual showings before a court may order the press not to disseminate information about a trial, beyond what the First Amendment requires.Footnote 154 Taken together, these various state-level constitutional rights of information access can have important implications for the press’s ability to engage in newsgathering efforts.
13.1.3.3 Prior Restraints
Under the First Amendment, prior restraints against publication are presumptively unconstitutional. But they are not prohibited outright. In Near v. Minnesota, the U.S. Supreme Court struck down a prior restraint on the publication of a magazine.Footnote 155 But it recognized there may be times where such restrictions were permissible, such as when protecting “the number and location of troops” in wartime.Footnote 156 Decades later, the Court reaffirmed its holding in the Pentagon Papers case,Footnote 157 holding once again that prior restraints are constitutionally disfavored but not categorically prohibited.Footnote 158
A handful of states have taken a different approach. They have interpreted state constitutional free expression provisions to create an absolute prohibition against prior restraints. As early as 1805, for example, the Pennsylvania Supreme Court read the state’s press provision to mean that citizens were free to “publish as [they] please in the first instance without control.”Footnote 159 Later that century, the California Supreme Court held that the state constitution’s speech and press provision forbids all prior government restraints on speech.Footnote 160 It reasoned that the First Amendment and the state constitution contained very different textual provisions. The state constitutional provision provided that “every citizen may freely speak, write, and publish his sentiments on all subjects.” And the state supreme court concluded that the plain language of this provision made clear that a citizen “shall have no censor over him to whom he must apply for permission.”Footnote 161
Other states followed suit, rooting their decisions in textual distinctions between the federal and state speech and press provisions. Arizona’s constitution, for example, provides that “every person may freely speak, write, and publish on all subjects.”Footnote 162 The state supreme court has read this language to mean that “there can be no censor appointed to whom the press must apply for prior permission to publish.”Footnote 163 Similarly, the Washington Supreme Court has read its free expression provision to “rule out prior restraints under any circumstances.”Footnote 164 And the Missouri Supreme Court has read its constitutional protections for speech and the press to operate as “an affirmative prescription against any exception.”Footnote 165
These decisions do not rule out the possibility of post-publication liability. To the contrary, most state constitutions provide that individuals are “responsible for the abuse” of speech and press rights.Footnote 166 But in terms of ex ante restraints on speech, some state supreme courts have held that their state constitutional free speech and press provisions sweep more broadly than the First Amendment.
13.1.3.4 Defamation
Some state constitutions also extend broader protections against defamation liability than those provided by the First Amendment. In The New York Times Co. v. Sullivan, the Supreme Court held that the First Amendment required government officials to show “actual malice,” or either knowledge of the truth or reckless disregard for the truth, in order to prevail in a defamation suit.Footnote 167 The Court reasoned that aggressive libel lawsuits by government officials would have the effect of chilling public speech and criticism.Footnote 168 A decade later in Gertz v. Welch, the Court extended the requirement to public figures more broadly.Footnote 169
In the decades since, Sullivan and its progeny have offered broad protections for the media to aggressively critique the government. They have also made it difficult for many defamation plaintiffs to prevail. The lower courts have expanded the definition of “public figure” to encompass many private figures unwittingly dragged into a public controversy.Footnote 170 At the same time, the media landscape has also changed in important ways in recent years.Footnote 171 Some critics have pointed to these legal and societal changes to argue that Sullivan should be overturned. Most notably, Justices Clarence Thomas and Neil Gorsuch have attacked Sullivan on both historical and empirical grounds, arguing that the press no longer deserves such insulation against defamation liability.Footnote 172
There is no indication that Sullivan is at imminent risk of being reversed.Footnote 173 But if it were to be overturned, state constitutional defamation law would take on new salience. Any loss of federal constitutional rights would put new pressure on the equivalent state constitutional provisions.Footnote 174 State constitutional speech and press provisions could act as a partial safety net against the threat of federal constitutional retrenchment of First Amendment rights.
Many state courts would likely retain actual malice requirements under their state constitutions, even if Sullivan were to be cast aside. Actual malice requirements originated in the states.Footnote 175 Although these early state court decisions were mostly rooted in common law rather than in state constitutional protections, these decisions predate Sullivan and would likely survive its repeal.Footnote 176 Further, state supreme courts have not had reason to weigh in on whether their state constitutions independently require actual malice. The First Amendment sets the constitutional floor, and any equivalent state law defamation protections would be redundant.Footnote 177 But the repeal of Sullivan would force state courts to confront this question. And it is likely that many would find that actual malice requirements persisted under state constitutional law, especially in states with a long tradition of extending broad speech and press protections.Footnote 178
This is not the only way that state constitutions implicate defamation liability. State courts have also interpreted state free expression provisions to provide broader protections against defamation suits. One example is state constitutional protection for statements of opinion. Until the 1980s, the federal lower courts offered extensive protections under the First Amendment.Footnote 179 The leading case was a U.S. Court of Appeals for the District of Columbia Circuit opinion that held that the First Amendment provided absolute immunity from defamation liability for opinion-based claims.Footnote 180 The D.C. Circuit case also articulated a four-part test for determining whether a statement qualified for this opinion-based protection.Footnote 181 Many other federal circuits and state supreme courts adopted this approach.
But the Supreme Court overruled the D.C. Circuit opinion in 1990, in Milkovich v. Lorain Journal.Footnote 182 It articulated a narrower conception of opinion protection instead, one that turned on whether a statement was provably false.Footnote 183 The decision sowed confusion in the lower courts.Footnote 184 And a number of state supreme courts eschewed this new approach, adhering instead to the more press-protective D.C. Circuit standard when it came to state constitutional defamation protections.Footnote 185
Notably, these state courts often rooted these decisions in textual and historical features unique to their state. New York’s highest court, for example, reasoned that the state constitution’s free expression provision articulates protection in “strong affirmative terms,” unlike the First Amendment’s negative prohibition against government interference.Footnote 186 The state court also described the state’s long history of press protection and New York City’s role as the “cultural center for the Nation.”Footnote 187 Such textual, historical, and cultural features distinct to the state, the court reasoned, weighed in favor of broader state constitutional protection against defamation liability.Footnote 188
Other state courts adopted similar reasoning. They held that their state constitutions, too, provided more robust protection against defamation liability. They likewise rooted these decisions in their states’ unique history and distinct constitutional texts. The Rhode Island Supreme Court, for example, emphasized that its colony had been founded by religious “dissenters” and that the “free flow of opinion and debate” had been especially “vital” to the state.Footnote 189 And the Utah Supreme Court cited the state’s tradition of aggressive editorial dissent between newspapers representing Mormon and non-Mormon interests when justifying recognizing broader defamation protections for statements of opinion than the First Amendment provided.Footnote 190
13.2 The Future of Constitutional Press Protections
State constitutions already operate as a source of independent protection for the press. Press advocates could do more to capitalize on these constitutional provisions. They could utilize state constitutions to extend new or expanded protections for the press. They could also mine the experience of the states and the history of state constitutional experimentation to bolster arguments for expanded federal press protections.
13.2.1 The Future of State Constitutional Press Protections
Textual and historical distinctions between federal and state constitutions have sometimes yielded broad protections for the press, beyond what the First Amendment provides. Further, certain states have also developed strong traditions of press protection, ones rooted in the distinct cultural or political features of the state.Footnote 191 But these efforts could be expanded. Press advocates could be more aggressive in raising state constitutional claims.Footnote 192 State courts could interpret these textual and historical distinctions to offer broader constitutional protections for the press. And voters could amend state constitutions in response to new or growing threats to journalism.Footnote 193
When it comes to state constitutional texts, there is significant overlap in the fifty state constitutional free expression provisions.Footnote 194 States that have already offered broader protections can serve as a roadmap for other states to follow. Decisions expanding press protections in one state can be utilized when advocating for similar recognition in another, especially when the textual language is closely aligned. For example, New York’s supreme court invoked the state’s “strong affirmative” right to “speak, write, and publish on all subjects” when extending strong protections for statements of opinion.Footnote 195 Thirty-nine other state constitutions contain this same provision, articulated in the same affirmative terms.Footnote 196 Yet only a few have followed suit. Press advocates in those other states could look to New York’s decision for guidance when raising similar claims.Footnote 197
Press advocates could also raise novel claims for protection, ones rooted in the unique textual or structural features of the state constitutions or the state’s distinctive histories and traditions. They could better capitalize on existing right-to-know protections, for example.Footnote 198 While state supreme courts often gesture to these provisions when discussing the state’s strong support for open government, they rarely interpret these clauses to offer meaningful expansions of the state-level rights of access. Press advocates could take up this cause. They could argue, for instance, that the constitutional right of access reaches government actors or entities not covered by public records statutes.
Press advocates could also utilize textual provisions that clearly assign the press a structural democratic role. They could draw upon constitutional language that emphasizes the role of the press in overseeing government – for example, provisions that stipulate the “printing presses shall be free to everyone who undertakes to examine the proceedings of the legislature or any branch of government.”Footnote 199 They could also invoke constitutional language that makes explicit the link between the suppression of the press and autocratic government, such as those declaring that freedom of the press “can never be restrained except by despotic governments.”Footnote 200 Such textual provisions make a powerful constitutional statement about the democratic role and responsibility of the press.
Press advocates could also lean more heavily on the affirmative nature of state press protections.Footnote 201 These affirmative provisions could be cited to support a set of expanded positive rights and obligations that flow from state press and speech protections. They could be used to argue in favor of more affirmative and active government interventions – ones that would proactively ensure a vibrant and healthy information ecosystem. These could include, for example, expanded newsgathering protections. A more radical interpretation of these positive rights provisions might be that they impose affirmative obligations on the government to support local news institutions – for example, through tax breaks or subsidies.Footnote 202 The collapse of the local press has lent new urgency to such projects.
State constitutional structural design could also be used to support expanded press protections. For instance, Rhode Island’s constitution enshrines protection for speech and the press in separate constitutional provisions.Footnote 203 The U.S. Supreme Court has interpreted these federal speech and press rights to overlap, leaving the Press Clause with little independent meaning.Footnote 204 Yet in the state constitutional context, such structural separation cuts against developing this same type of textual redundancy between press and speech rights.Footnote 205 Press advocates could better capitalize upon these types of distinctions.
Relatedly, variations in state constitutional drafting histories could also offer opportunities for press advocates. Many of the debates of the earliest state constitutions have been preserved.Footnote 206 Further, these original constitutions have all been amended or replaced, often repeatedly.Footnote 207 This introduces a range of methodological questions and complexities when it comes to state constitutional interpretation.Footnote 208 But it also means that there is a larger set of state-level drafting materials to draw upon.Footnote 209 These later state constitutions often have more detailed and better-preserved records of the drafting debates.Footnote 210 They, too, can be mined to support broader state-level press protections.
Finally, state constitutional processes can be used to expand protections for the press. State constitutions are more easily amended than the U.S. Constitution.Footnote 211 This permits voters to respond to new or emerging threats to the press through ballot initiatives and amendments. In this way, states’ bill of rights provisions serve a distinct political function from the federal Bill of Rights. These state constitutional processes allow state voters to respond more quickly to “particular government failures.”Footnote 212
Consider the example of California’s constitutional reporter’s privilege shield. Voters responded to specific threats to the press by elevating statutory reporter’s privilege protections to constitutional status.Footnote 213 Other states could follow suit. They could respond to new or emerging threats to the press through ballot initiatives and amendments. They could amend state constitutions to enshrine all manner of press protections into the constitutional text – not just confidential sources but also expanded protections against defamation liability, prior restraints, government surveillance of journalists, and more. To the extent that existing statutory press provisions seem imperiled, voters could constitutionalize them, making them more difficult to ignore or circumvent in the future.
13.2.2 The Future of Federal Constitutional Press Protections
State-level constitutional experimentation might also hold important lessons for ongoing debates about federal protections for the press. This is not universally true. Different political, historical, and legal considerations are in play at the federal versus state levels. Some state-level protections – for example, absolute prohibitions against prior restraints – might be ill-suited to the federal context, given the unique national security and military considerations at stake at the federal level.Footnote 214 Moreover, there are important textual distinctions between federal and state press and speech provisions that limit the extent to which state constitutional interpretations can be adopted wholesale into the federal context.
Yet some state-level innovations might still be helpful in informing federal press-advocacy efforts. Specifically, the experience of the states could be mined to refute some of the Court’s policy-based justifications for declining special First Amendment protections for the press. The Supreme Court has repeatedly declined to engage in the task of defining who qualifies for press-specific protections, for example. In Branzburg v. Hayes, the Court wrote: “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege,” a task made complicated because the “informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.”Footnote 215 In other words, the definitional questions are simply too difficult for the courts to untangle.
The experience of the states undermines this claim. Forty-nine states extend some form of reporter’s privilege to journalists through a mix of common law, constitutional, and statutory protections.Footnote 216 This has required defining who qualifies for protection. The states have taken various approaches – some functional, others more formal.Footnote 217 But overall, the experience of the states suggests that this definitional concern may be overblown. The states have managed the task largely without controversy, often finding that the person asserting the privilege is so clearly a journalist that they don’t need to define the outer boundaries of its scope. As Professor Sonja West has argued, the experience of the states shows that “defining ‘the press’ can be done.”Footnote 218
We can also imagine how state experimentation might hold additional lessons for federal Press Clause constructions in the future. The Supreme Court has been hesitant to endow the federal Press Clause with any independent meaning. State constitutional examples can be used to illuminate new and different paths forward. These contrary experiences and histories of the states can be cited when urging the Court to revisit its holdings in such cases as Branzburg and Milkovich, for example.Footnote 219 State constitutional experimentation can be used to offer the Court a concrete set of examples for alternative options. And they can be used to help imagine a more expansive First Amendment – one that supports a more robust set of press rights.
13.3 Conclusion
The Roberts Court has curtailed the scope of various constitutional rights provisions in recent years. In response, scholars and activists have increasingly looked to state constitutions as an alternative source of protection. Across substantive areas like abortion and climate change, state courts have interpreted state constitutions to provide more expansive rights than the U.S. Constitution.Footnote 220 This chapter argues that members of the press should look to state constitutions as an alternative source of legal protection as well.
The U.S. Supreme Court has consistently declined to interpret the First Amendment in ways that extend special privileges to the press. But state constitutions can be used to fill in these federal constitutional gaps, operating as a powerful and independent source of protection for the media. Some states have already done so. They have extended greater protection under the state constitution when it comes to prohibitions against prior restraint, reporter’s privilege shields, rights of information access, and protections against defamation liability.Footnote 221 These decisions are rooted in textual, structural, and historical distinctions between the federal and state constitutions, as well as differences in the federal and state political experiences.Footnote 222
But more can be done. Press advocates could better capitalize on these distinctions going forward. They could look to the comparatively stronger texts of state constitutions to support stronger press rights. They could draw upon structural distinctions in state constitutions to avoid interpreting state-level press clauses to be wholly duplicative of state speech clauses. They could amend state constitutions in response to new and growing threats to the press. And they could hold up the examples of state constitutional experimentation to help imagine a new and more expansive First Amendment. These fifty “other press clauses” could step in where the federal Press Clause has failed.
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