Achieving press freedom: Arguments to activate the “Or of the press” clause and to import a model of voluntary press regulation

The First Amendment provides that ‘Congress shall make no law…abridging the freedom of speech, or of the press.’ By explicitly referencing the press, these last four words seem to indelibly etch press freedom into the Constitution in the form of a ‘press clause’. Cast in this way, press freedom could become a structural constitutional provision, requiring a higher threshold for state interference than the individual right to free speech. In turn, an active press clause would give the press protection in a similar way to the European Court of Human Right’s European Convention on Human Rights jurisprudence in recognition of the fact that the press discharges certain constitutional values. In the US, however, the prevailing model of press freedom determines that it and free speech are, essentially, equivalent, and therefore press freedom does not require any special protection or privileges. This is because – so the argument goes – the Framers of the Constitution understood the words ‘or of the press’ to secure the right of every person to use communications technology, as opposed to laying down a right exclusively available to members of the press. Accordingly, the Supreme Court has consistently found that the First Amendment protects speech not speakers. This article’s significance and originality lie in its two core arguments. Firstly, it contends that the changed media ecology – which has seen a proliferation of non-institutional independent and citizen journalists making vital contributions to the public sphere – requires clear recognition of who, or what, is ‘the press’, which in turn requires a rejection of the equivalency model and the activation the ‘press clause.’ This is because the press serves a uniquely important function within the public sphere and democracy. And, therefore, individuals and organisations operating as press need the necessary protection, access, and recognition to fulfil their role. To facilitate this distinction the article advances a functional reconcepualisation of the press that accounts for the array of non-institutional speakers performing press functions. Secondly, in acknowledging that despite the force of the claim in favour of activating the press clause the current Supreme Court’s rhetoric suggests this is unlikely, it advances a solution to the constitutional voids this has left: the importation of a model of voluntary regulation that could, if implemented correctly, benefit the press and the public regardless of whether the press clause is, or is not, activated. These core arguments are important as they offer practicable and theoretically supported solutions to recognise, protect, and facilitate all types of journalists to perform their democratically critical role. In turn, this benefits and protects the public sphere by enabling citizens to be sufficiently informed to engage effectively in the democratic process.