In 1989, having published my basic views on the First Amendment in Human Liberty and Freedom of Speech (1989), it seemed time to move to a different, even if related, topic. In that first book, I describe a view that sees the First Amendment prohibitions against abridgment of freedom of speech and freedom of the press as embodying different concerns. Freedom of speech seems fundamentally to be about respect for individual liberty, a value of autonomy that a government committed to being able to justify its legal order must respect. On the other hand, the press is essentially an institution or, as Justice Potter Stewart put it, is the only business explicitly protected by the First Amendment. Constitutional protection of the press seems necessarily related to instrumental values. In particular, as commentators beginning in the eighteenth century have recognized, the reason to protect the press from government abridgment lies in its contribution to democracy or, more broadly, to a free society. It provides a source of information and vision independent of government.

I had already argued almost ten years earlier that press freedom and its capacity to serve its democratic role could be threatened from two directions: from abuse of government power or from private power and the dynamics of the market. Though my earlier work had emphasized the need for strong constitutional protection from government threats, I now turned to the other side of the equation and considered how the press needs government protection from private forces that could otherwise undermine its performance.