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In the 18th century it was decided that in the U.S.A. "freedom of the press" would prevail.

"The press" is the printing press, a technology for mass-producing copies on paper. Thus freedom of the press would appear to mean freedom to use that technology, a freedom belonging equally to those whose job is to do that and those who do it only once.

But sometimes people use the phrase "the press" to mean those whose occupation is to make and distribute copies of their writings, or else those who report the news (via the web as well as the old-fashioned way?). It seems some people construe "freedom of the press" to be a freedom belonging only to that class of people, perhaps even according them special rights that others don't have.

Which is it?

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  • What class of people? Professional news people? What special rights? Right of access to, e.g., White House press conferences? Who uses "freedom of the press" that way? Can you give some examples to clarify your question? – phoog Jan 25 '16 at 22:29
  • Professional news people. Concerning Cohen versus Cowles Media I find this: "The [Supreme Court of Minnesota] ruled that the First Amendment's free press guarantee prevented promissory estoppel from applying to the newspapers." – Michael Hardy Jan 26 '16 at 20:18
  • Also this: "In a 5-4 opinion delivered by Justice Byron White, the Court held that the First Amendment did not bar a promissory estoppel suit against the press." The point here is the meaning of the phrase "the press". They think it means professional news people. – Michael Hardy Jan 26 '16 at 20:19
  • This is a timely question because of the fervor around Making a Murderer. The filmmakers were accused - by the prosecution - of working for the defense. The prosecutor subpoenaed the filmmakers' files. The filmmaker got the subpoena quashed, winning the argument that they are press. This is an example of how being "press" puts you in a special category which grants you privilege you might not other use have. – jqning Jan 27 '16 at 3:31
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This is an important question that affects consumer advocacy, blog-based-journalism, political speech and spending, and probably other things.

People disagree about what the answer is.

This podcast episode features both sides of the argument.

Professor Volokh holds the view that the freedom of the press is "freedom to print", "freedom to use the printing press". Freedom of the press is the freedom of everybody to use the printing press. Assessing the grammar of the clause, he argues that this points in the same direction. The text says "freedom of speech or of the press". He points out that speech is not a group of people. It would be odd to treat "speech" as an activity, but to treat "press" as a group of people given the parallel construction. This side of the argument is described more in this article by Prof. Volokh.

Professor West argues that there is a defined group of people called "the press" that deserves protection under this clause. This article explains Prof. West's position in detail. The main point is that "An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause." If "press" means simply the right to publish speech, then it becomes redundant because courts have held the right to publish speech is given under that "speech" portion of the clause. Justice Stevens's concurrence in Citizens United also argued for "some kinds of identity-based distinctions" regarding whether a person is a member of the press.

Each side can give examples of the term "the press" being used at the time of the First Amendment that is consistent with their favored interpretation.

I think to get the best idea of the two sides to this question, you should read Citizens United (including all dissents and concurrences), read the two articles linked above, and listen to the podcast episode.

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    Of course, the second argument is misguided and anachronistic. The people composing the text of the first amendment had no way of knowing whether courts would rule that "freedom of speech" should extend to non-verbal communication, which is no doubt why they included "or of the press" in the first place. – phoog Jan 25 '16 at 22:32
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    Possibly, but I may not be doing her argument justice (and that of Justice Stevens in Citizens United)... please don't write it off based on my summary :) – user3851 Jan 25 '16 at 22:34
  • I just skimmed the article and I don't find it any more convincing. I'll give it a more thorough read tonight. – phoog Jan 25 '16 at 22:45
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    I don't think there's any expectation that you would be convinced by it, so don't worry. Many smart people (e.g. Justice Scalia and Professor Volokh) aren't convinced by that argument. – user3851 Jan 25 '16 at 22:48
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As the other answer notes, there are competing interpretations of what "freedom of the press" meant when the First Amendment was adopted.

Today, though, there is no question that the law is applied to extend "freedom of the press" to everyone, regardless of whether they are "publishers" in the traditional sense. At least as far as the First Amendment is concerned, being a publisher does not exempt you from generally applicable laws:

It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

Employment Div. v. Smith, 494 U.S. 872, 878 (1990).

Nor does it grant you any special rights:

Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.

Pell v. Procunier, 417 U.S. 817, 833–34 (1974).

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