Education Law

Freedom of the Press IS Freedom of the Internet

When most people think of "freedom of the press" in the First Amendment, I think they think of a freedom that is associated with news reporters (those folks that work for newspapers, radio, TV, etc.). I don't think that is what the founders meant. The words press and media and other terms nowadays refer to specific elements of news reporting (because of their historically close association as users of that technology) ... but they have broader meanings that were used more heavily during the founders time. The press referred to the printing press (as in paper was "pressed" against a dye to replicate information) and media as a plural of medium, an information intermediary. If you look at the Oxford English Dictionary and their earliest usage references (click on previous 3 links), it seems much more likely that press meant the actual printing press as the earliest references to press and media as people instead of machines happened about the time or slightly after the time the Constitution was written. In other words, the medium as much as, or more than, the content or the purveyors of that content. 

As Al Gore points out, in his largely otherwise forgettable book the Assault on Reason, the physical object of the printing press was the technology largely responsible for the Enlightenment and subsequently the reestablishment of democracy in America. Thus, protecting the physical object was as important or more important to the founders than protecting the content that the physical object replicated.

By extension, "Congress shall make no law ... abridging the freedom ... of the press" could be interpreted these days, I think appropriately, as "Congress shall make no law ... abridging the freedom ... of the Internet."

Credit: Matt Britt via WikipediaBasically, the Internet is just a much wider and more powerful collection of printing presses (think of each node in the image to the right as a printing press). It is the distribution capacity that has changed, but the basic theoretical component of a machine that replicates and distributes information has not changed. Thus, it is no extension of the constitution to apply to the historical protections afforded the press directly to the Internet.

I am sure other scholars have made this point, and probably numerously so, but it was a realization that occurred to me over the weekend and I wanted to pass it along. If someone has a reference to a paper that makes this point further, I would much appreciate it.

Full post as published by Edjurist on November 23, 2009 (boomark / email).