Legal Commentary

State Attorneys General Argue that Non-Media Speakers Should Get Less First Amendment Protection than Media Speakers

By Eugene Volokh

From the amicus brief for 48 states plus D.C. supporting Snyder in Snyder v. Phelps:

?No decision of [the Supreme] Court has ever exempted a non-media defendant from generally applicable state tort law on First Amendment grounds.

That assertion is factually mistaken: NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), held that non-media defendants could not be held liable for their speech under the generally applicable state tort law of interference with business relations.

And beyond this, Citizens United v. FEC, 130 S. Ct. 876, 905?06 (2010), expressly ??reject[s] the proposition that the institutional press has any constitutional privilege beyond that of other speakers?? (adopting the reasoning of Justice Scalia?s dissent in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 691 (1990), and of Justice Brennan?s dissent in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 784 (1985); Dun & Bradstreet involved state tort law). I?m disappointed that so many state attorneys general, of both parties, are willing to reject this, and to treat ?institutional press? speakers as getting more First Amendment protection than other speakers have. And of course their position would have to deal with what Citizens United gave as one of the reasons for its conclusion: ?With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.? Is this blog part of ?the institutional press?? Or should it get less protection than, say, various Slate or Salon columns, or posts on National Review Online?s The Corner?

(For a response to the argument that the text and original meaning of the Free Press Clause does offer special protection to the press as an institution, see here. I argue there that the Free Press Clause protects the press as a medium of mass communication, to the same extent that the Free Speech Clause protects media of more immediate communication. There is some original meaning evidence that supports my reading, and none that I know of that supports the ?institutional press gets special protection? theory.)

Full post as published by The Volokh Conspiracy on June 01, 2010 (boomark / email).