Supreme Court's References to Press Clause Decline, Raising Questions on First Amendment Application

Why it matters locally: The implications of a narrower interpretation of the First Amendment's press clause could affect how journalists and news organizations operate within Alabama, particularly concerning protections for newsgathering and confidential sources.

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WASHINGTON – Supreme Court opinions have shown a significant decrease in references to "the press" since 1970, according to a 2021 study by legal scholars RonNell Andersen Jones and Sonja West. In a five-year period beginning in 1970, court opinions included nearly 1,500 paragraphs mentioning the press. That figure fell to under 100 between 2015 and 2019. This decline illustrates a broader trend in the Court's First Amendment interpretation, even in cases involving journalism and newsgathering. The First Amendment states, "Congress shall make no law… abridging the freedom of speech, or of the press." Floyd Abrams, a First Amendment litigator, told SCOTUSblog that the broad interpretation of freedom of speech has sidelined the press clause. Abrams stated, "in many cases, the press and all other speakers or writers are in exactly the same boat and receive the same sort of legal protection." Historically, the Court has provided specific protections to the institutional press in certain cases. In 1936, *Grosjean v. American Press Co.* saw the Court unanimously strike down a Louisiana law taxing newspapers based on circulation. Justice George Sutherland wrote that the tax functioned as a "deliberate and calculated device... to limit the circulation of information." Forty-seven years later, in *Minneapolis Star v. Minnesota Comm’r* (1983), the Court reaffirmed this precedent, ruling an 8-1 decision against a Minnesota use tax on ink and paper that targeted print publications. Justice Sandra Day O’Connor wrote in her majority opinion that the tax structure, which singled out the press, violated press freedom. Another case involving the press clause was *Miami Herald Pub. Co. v. Tornillo* (1974). The Court unanimously struck down a Florida law requiring newspapers to print political candidates' responses to critical coverage. Chief Justice Warren Burger wrote that the statute imposed a content-based penalty. Dominic Coletti, a program officer for the Foundation for Individual Rights and Expression’s Student Press Freedom Initiative, commented on the *Tornillo* ruling to SCOTUSblog, saying it involved "the same compelled speech issue that you would have in any other context." Many prominent Supreme Court cases concerning journalism have generally treated speech and press clauses as a single doctrine. In *New York Times v. Sullivan* (1964), the Court established the "actual malice" standard for defaming public figures. Justice William Brennan's majority opinion used phrases like "freedom of speech and of the press" multiple times without clearly distinguishing between the two concepts. In *Nebraska Press Assn. v. Stuart* (1976), the Court unanimously held that a judge's order restricting press reporting on confessions was an unconstitutional prior restraint on speech. In *First Nat’l Bank of Boston v. Bellotti* (1978), Justice Lewis Powell explored the relationship between the two clauses. Powell argued that the press clause's history did not suggest it aimed to confer rights on the "institutional press" beyond those held by other information publishers. Powell wrote that the press clause "merited special mention simply because it had been more often the object of official restraints." However, Powell's characterization did not address whether the press clause protects newsgathering activities, such as access to public spaces or source protection. Press freedom advocates have faced setbacks in these areas. In *Branzburg v. Hayes* (1972), the Court ruled journalists do not have a First Amendment right to refuse grand jury testimony identifying confidential sources. Two years later, *Pell v. Procunier* (1974) upheld a prison rule preventing journalists from face-to-face interviews with specific inmates, rejecting a special right of access for the press. In *Zurcher v. Stanford Daily* (1978), the Court permitted police to search a newspaper's premises with a valid warrant for evidence, even if the newspaper was not suspected of a crime. The decline in the press clause's influence motivated Abrams and Sandra Baron, a senior fellow at Yale Law School’s Abrams Institute for Free Expression, to create the Press Clause Project. Their initial report proposed ways to strengthen the press clause's legal application. The report suggested recalibrating the relationship between general laws and newsgathering rights, including reconsidering *Branzburg* and *Zurcher*. Proposed measures included reserving seats for the press at public trials, protecting journalists from removal at public gatherings, and ensuring journalists' right to observe state executions. Baron told SCOTUSblog that the press clause had become "an invisible, not simply neglected, but almost an invisible clause in the Constitution." She added that the press, media bar, and public should seek ways to give constitutional relevance to this phrase and use it to protect journalism. A challenge in implementing these recommendations involves defining who constitutes a journalist. Abrams and Baron proposed a test considering factors such as affiliation with a news organization, reporting history, editorial independence, and a formal editorial process. They cited state journalist shield laws that define the press using multiple criteria as evidence that legal distinctions can be drawn. Coletti argued for broader protections for newsgathering beyond specific media affiliations. He stated, "What we want is a broad protection for newsgathering, which is a fundamental part of being able to express what is happening." Based on recent Supreme Court jurisprudence concerning the press clause, an expansion of newsgathering protections is not anticipated soon.