Courts have been reluctant to interpret the First Amendment’s Press Clause as providing the press with significant protections distinct from those provided to all of us by the Speech Clause. But courts could choose to do so, and litigants and scholars can help illuminate those choices. What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes – more specifically, what distinct functions does the press perform and what distinct vulnerabilities does the press possess?

In terms of distinct press functions, the press serves the public through its watchdog, educator, and proxy roles. The press performs a critically important checking function by reporting on the government’s performance, including its misconduct.Footnote ¹ The press informs the public about current affairs, science, health, the environment, art, entertainment, and much more. The press also serves as a proxy for the public by observing and reporting on events of importance to the public where the public does not have the time or other resources to observe those events directly.Footnote ²

These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: Because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Moreover, changes in the political environment (along with “the affordances of online social media platforms – anonymity, accessibility speed, and scale”Footnote ³) have aggravated threats to journalists’ physical safety, intensifying their vulnerability still further. As legal scholar Erin Carroll has detailed, “physical assaults against journalists in the United States increased nearly 1,400% in 2020” and “a 2018 study found that one in ten journalists surveyed had been threatened with death in the past year because of the work they do.”Footnote ⁴ So too have contemporary changes in technology exacerbated these vulnerabilities by posing existential challenges to the press’s financial survival.Footnote ⁵

“Negative” First Amendment theory, as I’ve written previously, “is about a negative value: distrust of government. And because the government gives us plenty of reason to distrust it, negative theory packs substantial power.”Footnote ⁶ Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, negative theory has long offered an important tool for understanding the Press Clause. And negative theory is now more valuable as an interpretive tool than ever, as press organizations and individual journalists are increasingly vulnerable to the government’s retaliation.

Among other things, negative theory can help us understand the Press Clause as providing an especially robust shield from the government’s retaliation – a shield different from that offered the public more generally by the Speech Clause precisely because of the press’s distinct functions and vulnerabilities. More specifically, directing judicial attention to the reasons to distrust the government’s adverse treatment of the press can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and their application of those rules once chosen.

A Press Clause doctrine informed by negative theory thus asks whether the government’s action gives us reason to worry that its choices have the intent and potential effect of muzzling the press as a watchdog.Footnote ⁷ “Affirmative” theories, in contrast, focus less on the government’s potential for regulatory abuse and more on the positive benefits of the press: Such theories urge that we interpret the Press Clause to provide the press with affirmative rights to newsgathering, like a right to receive information or access places not available to the public more generally.Footnote ⁸ Note, however, that applying negative theory to understand the Press Clause as providing a mighty shield against the government’s retaliation does not preclude us from also understanding the clause to afford the press with such affirmative rights.

Indeed, courts and commentators often rely on multiple theories when considering specific First Amendment problems.Footnote ⁹ For instance, the Speech Clause’s protection of political dissent from the government’s regulation can be explained in both negative terms (to guard against the government’s self-interested efforts to silence its critics) and affirmative terms (because political dissent valuably contributes to democratic self-governance, enlightenment, and autonomy).Footnote ¹⁰ In other words, “negative” and “affirmative” Press Clause theories are not mutually exclusive, and the different theories can cash out with different doctrinal yields.

11.1 The Government’s Retaliation Against the Press, Past and Present

We distrust the government’s regulation in settings where experience leads us to conclude that the government’s motives are self-interested or that its bias or competence is otherwise suspect. The framers of the Press Clause drew from exactly such experience, as they were all too aware of the government’s history of interfering with press freedom through press licensing and seditious libel.Footnote ¹¹ As Floyd Abrams has explained, “the Press Clause was, at the very least, a deeply felt response to the deprivations of press liberty that the colonists had witnessed and to which they had been subjected.”Footnote ¹²

One need not be an originalist, however, to interpret the Press Clause through the lens of negative theory. A structural understanding of the press’s key functions explains the government’s incentives for punishing and silencing the press: As Justice Potter Stewart explained, by providing the public with “organized, expert scrutiny of the government,” a “free press” provides a “formidable check on official power.”Footnote ¹³

Examples abound – both old and new – of the government’s propensity to stifle the press’s scrutiny. Recall, for instance, the calculated efforts by Alabama government officials in the 1960s to drive journalists covering the Civil Rights Movement out of the state;Footnote ¹⁴ their tactics included weaponized defamation claims like those made in The New York Times Co. v. Sullivan.Footnote ¹⁵

Consider, too, governments’ punishment of local papers’ critical scrutiny by pulling advertising from those papers or terminating contracts with them for printing legally required notices of tax sales, public meetings, and more. To be sure, governments have long engaged in such retaliation,Footnote ¹⁶ but newspapers’ contemporary financial instability leaves them especially vulnerable to such actions, which threaten a considerable chunk of their revenue.Footnote ¹⁷

As yet another illustration, think of the government’s not-so-unusual practice of punishing journalists or press outlets critical of its performance by banning them from attending press conferences or communicating with government officials. Recall, for instance, former President Donald Trump’s practice of revoking, or threatening to revoke, the White House press credentials of journalists whose questions or reporting criticized his administration’s performance.Footnote ¹⁸

So, we can find examples aplenty of the government’s retaliatory tendencies with respect to the press. What to do about it?

11.2 How Negative Theory Could Reinvigorate Press Clause Doctrine

The contemporary Supreme Court leans heavily on negative theory when developing and applying its Speech Clause doctrine. Consider, for instance, United States v. Alvarez,Footnote ¹⁹ where the Court struck down a federal law that criminalized intentional falsehoods about receiving military honors, a law that neither punished nor chilled any valuable speech.Footnote ²⁰ There, the Court relied on negative theory, focusing entirely on its distrust of the government’s potential for regulatory mischief: “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.”Footnote ²¹

Other examples of the Court’s reliance on negative theory for Speech Clause purposes include Heffernan v. City of Paterson.Footnote ²² There, the Court upheld a First Amendment challenge to government officials’ demotion of an employee whom they mistakenly believed to have supported an opposition candidate. That the employee did not actually support – and thus had not engaged in protected political speech supporting – the candidate did not matter to the Court’s analysis. Instead, the government’s effort to suppress speech it perceived as threatening its political self-interest, by itself, violated the Speech Clause.

Yet the Court only occasionally invokes negative theory in its Press Clause cases. The rare exception – now four decades old – illustrates the rule: In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, the Court invoked a hefty dose of negative theory to strike down a state’s taxing scheme that applied only to the press (a tax on paper and ink used in the production of periodicals like newspapers) and only to certain members of the press (those that annually spent more than $100,000 on ink and paper).Footnote ²³ The Court’s opinion reflected its deep distrust of the government’s motives and its censorial potential. Consider this, for example:

And this (where the majority explained the danger of enabling the state to single out the press for a different method of taxation even if the press’s tax burden were lighter than other businesses’):

Recognizing the law’s “potential for abuse,”Footnote ²⁶ the Court applied a version of strict scrutiny to strike it down.Footnote ²⁷

That negative theory is now so often absent from courts’ Press Clause jurisprudence explains much of their failure to understand the Press Clause as doing work independent of the Speech Clause. Consider now two ways in which the robust infusion of negative theory could reinvigorate Press Clause doctrine.

11.3 Informing Courts’ Choices of Press-Specific Rules

First, reliance on negative theory – that is, concern for the government’s capacity for, and the press’s vulnerability to, retaliation – could in certain settings generate very different Press Clause rules. Think, for instance, how the Court’s decision in Branzburg v. HayesFootnote ²⁸ might have turned out differently had it been informed by negative theory.

The Branzburg majority rejected the press’s argument that the Press Clause should be interpreted to provide journalists with a shield from law enforcement subpoenas requiring them to disclose their confidential sources. The Court instead concluded that the Press Clause confers the press with no distinct rights of its own, such that members of the press must comply with subpoenas along with everyone else. In so holding, the majority downplayed negative theory concerns, discounting reasons for distrusting the government’s exercise of its subpoena power specifically with respect to journalists:

The dissent, in contrast, credited reasons to fear the government’s potential to abuse its power to retaliate against the press – particularly in the grand jury setting, where “the judiciary has traditionally imposed virtually no limitations on the grand jury’s broad investigatory powers.”Footnote ³⁰ The dissent’s distrust of the government in this context thus led it to advocate a rule considerably less deferential to the government than the majority’s rule. Under the dissent’s preferred approach, the government would have been required to show probable cause to believe that a journalist has information “clearly relevant to a specific probable violation of law,” “that the information sought cannot be obtained by alternative means less destructive of First Amendment rights,” and that the government has a compelling need for the information.Footnote ³¹

As we can see, judicial awareness of the government’s incentives and capacity to retaliate against the press can support courts’ choice to apply Press Clause rules considerably more suspicious of the government.

11.4 Informing Courts’ Application of Existing Rules in Press Clause Cases

Second, negative theory can valuably inform courts’ application of rules already chosen. Under doctrine developed primarily for Speech Clause claims, an individual proves the government’s retaliation in violation of the First Amendment if they can show that (1) they engaged in speech or other activity protected by the First Amendment, (2) the government took action that would chill a person of “ordinary firmness” from continuing to engage in such speech or protected activity, and (3) the government’s action was substantially motivated by their speech or other protected activity.Footnote ³² Courts routinely apply this rule to retaliation claims brought by the press, just like any other speaker. Among the biggest barriers to the press’s success under this framework is its difficulty in convincing courts that the government’s action had the requisite potential to chill a person of “ordinary firmness.” Attending to the government’s self-interest in silencing critical coverage along with the press’s vulnerabilities to such retaliation, however, can lead to different results.

Consider, for instance, the difference that negative theory could have made in Baltimore Sun v. Ehrlich.Footnote ³³ There, the Fourth Circuit rejected a newspaper’s challenge to Maryland Governor Robert Ehrlich’s decision to bar state employees from speaking with two Baltimore Sun reporters because he was unhappy with those journalists’ coverage of his administration.

The Sun’s challenge emphasized negative theory concerns, taking pains to explain the burden of such actions on “small news organizations [that u]nlike The Sun … do not have sufficient resources to attempt to withstand such a blatant attempt to influence their coverage.”Footnote ³⁴ Along the same lines, the amicus brief filed by The Washington Post described in detail how the governor’s actions interfered with the press’s checking functions in ways that ultimately harmed the public: “All [who report on the Maryland state government] have effectively been warned that if they are critical of the Governor or his administration, they too can be denied access to information that they need to do their job.”Footnote ³⁵ This brief also underscored the vulnerability of smaller news organizations to actions like the governor’s, observing that “the problem is particularly acute for those newspapers covering state government with small staffs [who] can ill afford to have the Governor blackball anyone they assign to the State House.”Footnote ³⁶

Yet the Fourth Circuit rejected The Sun’s claim, concluding that the governor’s action would not have had a chilling effect on journalists of ordinary firmness. The panel held that “a reporter endures only de minimis inconvenience when a government official denies the reporter access to discretionary information or refuses to answer the reporter’s questions because the official disagrees with the substance or manner of the reporter’s previous expression in reporting.”Footnote ³⁷

But an opinion attentive to negative theory concerns – in other words, an opinion attentive to the reasons to distrust the government’s adverse treatment of the press or specific members of the press – would have supported a different result. More specifically, an opinion informed by negative theory would have recognized the threat posed to the press’s checking function in general (and to the work of smaller news outlets in particular) when punitively denied access to the information that makes quality reporting possible. Today, nearly twenty years later, the precarious financial state of most media organizations means that nearly all press outlets – not just smaller outlets – are acutely vulnerable to such restrictions. In other words, a decision informed by negative theory could apply the traditional three-part anti-retaliation rule to conclude that the governor’s action did indeed chill journalists of “ordinary firmness.”

Note too that negative theory could also support a court’s choice of an entirely different, more government-suspicious rule for evaluating such claims, as discussed above.Footnote ³⁸ In other words, courts could choose to apply strict scrutiny – thus requiring the government to bear a heavy burden in justifying its action – when the government singles out specific press speakers for disadvantageous treatment due to the critical content of their coverage.Footnote ³⁹ Indeed, this is the approach the contemporary Court purports to take for Speech Clause purposes whenever the government singles out specific messages for disadvantageous treatment.Footnote ⁴⁰

Relatedly, negative theory can inform courts’ capacious understanding of the ways in which the government can retaliate against the press. For instance, negative theory can help us understand how, under some circumstances, the government’s retaliatory lies, threats, or other speech can violate the Press Clause when they have the intent and effect of chilling journalists’ and press outlets’ critical coverage. Although the government’s speech is generally exempt from First Amendment review, the government’s speech can violate the Constitution when it interferes with its targets’ constitutionally protected choices or opportunities in ways that would violate a constitutional right if the government’s interference took the form of traditional lawmaking or regulation.Footnote ⁴¹

More specifically, the government’s speech can retaliate against press targets in violation of the First Amendment by changing the behavior of either of two sets of audiences: The government’s speech may cause third parties to retaliate against the government’s targets because of their protected activity, and the government’s speech may directly silence their targets.Footnote ⁴² Examples of the former, for Speech Clause purposes, include the Mississippi State Sovereignty Commission’s lies in the 1950s and 1960s to the employers, friends, families, and neighbors of civil rights activists – falsely asserting those activists’ sexual misconduct, financial improprieties, or illegal drug use – to silence their speech advocating desegregation.Footnote ⁴³ Examples of the latter include the government’s threats of criminal or economic punishment directly against its targets.Footnote ⁴⁴

A Press Clause doctrine informed by negative theory would look for evidence of the government’s retaliatory motives and chilling effects in its speech involving the press. For this reason, under some circumstances, the government’s expressive attacks rise to the level of retaliation prohibited by the Press Clause not only if they directly threaten their targets but also if they have the intent and effect of causing third parties to retaliate – physically or economically – against the press.Footnote ⁴⁵

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In short, a Press Clause doctrine illuminated by negative theory would reflect awareness of the government’s incentives to retaliate against the press to disrupt the press’s scrutiny of the government. And a Press Clause doctrine illuminated by negative theory would recognize the press’s vulnerability to the government’s retaliatory efforts to undermine its checking function. In this way, attention to negative theory can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and by informing their application of rules once chosen.