The First Amendment’s Press Clause may seem simple and straightforward at first glance: “Congress shall make no law… abridging the freedom… of the press.” It guarantees that any material, even government critiques, can be published — no interference, punishment or censorship allowed. Thomas Jefferson’s oft-quoted declaration that “newspapers without a government” would be preferable to “a government without newspapers” supports this idea. The press should have not only the ability but also the constitutional right to hold government accountable.
Yet various changes in the modern journalism industry threaten the press as a protected institution, as former political journalist David A. Anderson explains in a 2002 Texas Law Review article. For one thing, the definition of “press” is nearly impossible to pin down. It no longer means whatever comes hot off a printing machine. Digital sources such as websites, blogs and apps abound, ranging from the neighbor documenting city sidewalk repair to Pro Publica’s investigations on oil drilling. All valid, and worthy of consideration as journalism. Right? Well… maybe. Journalism is also difficult to define these days.
For law professor Randall Bezanson, journalism is the “independent choice of information and opinion of current value, directed to public need, and born of non-self-interested purposes.” It must supply “what we need to know, not simply what we want to know.” Anderson pokes holes in these ideas. Much of the press is bound to consumer and advertiser demands, Anderson says, despite an ideal of independence. And journalism’s emphasis on choosing what we need to know—not what we want to know—is problematic when the public does not share concerns and information needs, and instead craves personalized, specific news. These issues have been exacerbated by our new media landscape where the proliferation of sources increases competition. Traditional and new media publications alike epitomize self-interest in their desperation to attract readers.
Given all this ambiguity, no wonder courts avoid the Press Clause, relying instead on the promise of “freedom of speech.” But its existence is still essential to protect the press from government interference. The tumultuous coverage of the Vietnam War, as described by Phillip Knightley in “From the Crimea to Vietnam: The War Correspondent as Hero, Propagandist, and Myth Maker,” offers one reason why.
At the war’s start, the U.S. tried to conceal the extent of its involvement. The State Department even hired a Time Magazine editor to fix the “press mess,” and get journalists to record an official story. Many rebelled. Editors called their writers back, changed their articles or didn’t print them at all. Their reporting was deemed irresponsible, sensationalized and unpatriotic, but bits of the truth eventually came out. The public started to wonder what was really going on in Vietnam, pressuring the media to publish thorough investigations, like an account of the atrocities at My Lai. Without the Press Clause, the journalists’ efforts could have been trampled completely.
A more recent example can be found in WikiLeaks. WikiLeaks is decidedly non-traditional, a product of the digital age. The international organization gathers classified information from anonymous sources and publishes it on a website, in addition to providing such info to news media. In 2010 it released 251,287 confidential U.S. diplomatic cables with the aim of enhancing government transparency and serving the public. U.S. officials, however, claimed that the leak harmed national security and compromised international diplomacy. Some wanted to charge WikiLeaks publisher Julian Assange with treason. Others criticized WikiLeaks for releasing thousands of documents at once without context or analysis. WikiLeaks isn’t journalism or part of the press, they argued.
It is true that WikiLeaks does not fit into traditional conceptions of either journalism or press. But these days, those definitions are evolving. Should we deny WikiLeaks the protection of the Press Clause just because it is new and different? No. Even if its methods are questionable, WikiLeaks ultimately serves the public interest and holds the government accountable, as Jefferson would have wanted. (Much like the intrepid Vietnam correspondents who revealed the truth of the war.) The form of our news may have changed, and even the manner in which it’s found, presented and delivered. But content—not form—matters most. The public is best served by keeping the definition of “press” as broad as possible.
See also: Yesterday’s Future working definition of “press freedom,” with examples of how publications encourage readers or users to assert their own right to “freedom of speech” via social media.