Does the Press Get Special Rights?

Authors

Lauren Gailey

Document Type

Article

Abstract

The press occupies a place in our system of government so unique and important that it’s often referred to as the “Fourth Estate.” The press is charged with ensuring that voters have the information they need to elect their leaders, shedding a sanitizing light on the inner workings of the government, and acting as a counterweight to its enormous power. In recognition of these functions—and, presumably, to enable and promote them—the architects of the Bill of Rights permanently enshrined the press in its own clause of the First Amendment.

Yet two centuries later, scholars have generally accepted that the press has received no special treatment under the Constitution, and for good reason—the Supreme Court has repeatedly said that the press is entitled to no more rights than the individual speaker.

This is what the Court has said—but it’s not what it has done. A closer look at the case law reveals that the Court has, in practice, granted the press additional rights and freedoms beyond what an individual speaker could claim in the form of special access to prisons and the court system and heightened protections from contempt of court, searches and seizures, and liability for defamation. Given the many examples that emerge from the relatively small number of press cases the Supreme Court has decided, it is hard to deny that the press often gets different—and better—constitutional treatment than everyone else.

And rightly so. Given the special role the press plays in our constitutional system and its express mention in the text, it seems natural that the press should be entitled to more rights and freedoms than the general public. But the Court has repeatedly shown reluctance to simply come out and say so, likely because affording rights to the press based on its status as “the press” raises a notoriously difficult threshold question: what is the press, anyway?

The sparse legislative history of the First Amendment offers almost no insight into what the Framers intended the Press Clause to mean. And the scholars who have wrangled with the definitional question have not squared the circle, either, defining the press so broadly (as a mere technology anyone could access) or so narrowly (by restricting it to institutional media) that the Press Clause has gained little traction as a repository for these special rights.

The question of who counts as press—and therefore stands to benefit from these rights—has never been thornier. Now that the internet and social media have opened up new channels of mass communication, anyone can play the part of a commentator or journalist without having to change out of their pajamas. And as technology progresses, defining the press will only get more difficult. The sooner the question is settled—or at least confronted in earnest—the sooner the body of First Amendment law can regain coherence.

DOI

10.37419/LR.V12.I3.3

First Page

1045

Last Page

1100

Recommended Citation

Lauren Gailey, Does the Press Get Special Rights?, 12 Tex. A&M L. Rev. 1045 (2025).
Available at: https://doi.org/10.37419/LR.V12.I3.3