ARTFUL DRAFTERS:

If the Supreme Court were to reinterpret the Press Clause in accordance with the historical findings set forth in this article, what would be the result? As explained more fully below, current Press Clause jurisprudence would be altered in three significant respects. First, the difficulty of defining the institutional press would be alleviated -- the definition would focus on news-gathering organizations that investigate and report on the activities of government. Second, the leading Press Clause precedents outlined above (particularly Branzburg, Zurcher, and Pell) would be overruled as wrongly decided. Third, a new doctrine -- recognizing greater press access to newsworthy events and information under government control -- would have to be developed.

In First National Bank of Boston v. Bellotti, Chief Justice Burger cited the difficulty of defining the institutional press as a key reason for rejecting any special Press Clause protection for the news media. But the difficulty of defining "the press" is no reason for treating the Press Clause as an empty promise. Defining the institutional press becomes easier if we are guided by the historical findings sketched above, in which newspapers were valued primarily for their role as government watchdogs, gathering and disseminating information about the conduct of public officials. This theme accords with Justice Stewart‟s conception of the press as the "Fourth Estate," providing "organized, expert scrutiny" of public officials; and it is a theme that continues even now to define the role of the press. Envisioning a role for the institutional press in the 21st century, Lee C. Bollinger observes: "[A]s long as there is democracy or government based on some even minimal level of consent of the people, the press is a necessity. Someone must provide us with factual information and analysis of what is happening in the world while upholding values of -- in the language of the Pulitzer Prize -- „honesty, accuracy, and fairness.‟"459 And Bollinger adds that the institutional press must include "organizations large and powerful enough to be able effectively to monitor and check the authority of the state." When defining the institutional press, these two functions -- news-gathering and government-monitoring -- must reside at the center of our definition.

What does this mean for bloggers and other opinion writers? Don‟t they more closely resemble the printers and pamphleteers of the Revolutionary era than a modern media giant like the New York Times? In many respects yes, but news analysis and editorial opinion bear the stamp of individual expression that is more readily associated with the Speech Clause. A revitalized Press Clause would afford protections more pertinent to an investigative, fact-gathering organization -- like increased access to newsworthy events and information, and immunity from newsroom searches and grand jury subpoenas.

This brings us to our second point -- that if the Press Clause were reinterpreted in accordance with the historical findings outlined in this article, then Branzburg, Zurcher, and Pell would be overruled.

Branzburg and Zurcher are wrongly decided under the historical interpretation of the Press Clause because, as a government watchdog with a structural role to play in the separation of powers, the institutional press must be protected from government "ransack[ing]" of newsrooms (through search warrants) and government-compelled disclosure of confidential sources and information (through grand jury subpoenas).

Pell is wrongly decided for limiting press access to the same low level as public access vis-à-vis government-controlled information and events. As explained by Justice Douglas, this linkage completely misunderstands the institutional role of the press as representing the public, venturing into prisons and other government institutions on the public‟s behalf. Since the role of the press is to keep the public informed, individual members of the public will not likely undertake their own investigations of the prison system or other government institutions. So it makes no sense, under the Press Clause, to define press access in terms of public access. Though Richmond Newspapers and its progeny have afforded meaningful press access to criminal trials, they bear the same fundamental flaw as Pell, linking press access to public access. By rejecting an independent, affirmative right of press access, the Supreme Court has given the press an unseemly incentive to encourage unlawful leaks of secret information by government employees.

Finally, we come to our third point -- that a reinterpreted Press Clause would reject the linkage between press and public access, and would instead recognize greater press access to newsworthy events and information under government control. Contemplating a 21st century role for the institutional press, Lee C. Bollinger has called for such a doctrine:

When a new case comes along involving the public interest in knowing about information under the government‟s control, the [Supreme] Court should take the next step and announce a general right of access. A good example that could have been used this way was the dispute between the government and the press over access to the war zone in Afghanistan. Another example was the request by the press to visit military prisons in Iraq.

Bollinger acknowledges the likely criticism of such a doctrine -- that press demands will overwhelm the courts and overburden the government -- but "[w]e can take comfort," he says, "from the fact that we have successfully managed exactly this state of affairs under the freedom of information acts that have existed now for several decades." And he sees an existing First Amendment doctrine that can serve as a model:

The Court has often recognized a First Amendment right in situations that seem to open up endless problems of definition. The Public Forum Doctrine is a good analogy. The Public Forum Doctrine exemplifies how the Court has developed an affirmative duty under the First Amendment requiring the government to help expand the opportunities for speech. This doctrine compels the government to allow speech to take place on some public property, such as streets, parks, and sidewalks. The PublicForum Doctrine is a precedent for protections on the newsgathering side of freedom of the press.

Though Bollinger proposes this doctrine while envisioning a future role for the institutional press, its adoption will depend on the Supreme Court‟s willingness to be guided by the past -- specifically, by the unique history of the Press Clause revealed in this article.

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