Eugene Volokh, the Gary T. Schwartz Professor of Law Emeritus at UCLA School of Law and Thomas M. Siebel Senior Fellow at the Hoover Institution at Stanford University, has spent decades examining First Amendment jurisprudence. In a recent article published in the Journal of Free Speech Law titled "The Press Clause: Important, Remembered and Equally Shared," Volokh presents an interpretation of press freedom that challenges claims about who benefits from constitutional protections.

In this edited conversation, Volokh discusses his response to the Floyd Abrams Institute's report, "The Press Clause: The Forgotten First Amendment." Volokh argues that the Press Clause was designed to protect everyone's right to use mass communication technology rather than providing special privileges to institutional media. As digital platforms transform how information is shared, Volokh makes the case that constitutional protections extend equally to all Americans who communicate with the public.

Volokh explains the historical context of the Press Clause, explores its current application in Supreme Court precedent and examines how his interpretation affects our understanding of free expression in today's rapidly evolving media landscape.

In your article, you argue against giving special First Amendment protections to the institutional press. Could you explain why you believe the Press Clause was intended to protect everyone's right to use mass communication technology rather than privileging specific media institutions?

If you look at the history at around the framing of the Constitution, and if you look at current law from the Supreme Court, it's pretty well settled that "freedom of the press" means the freedom of all of us to use the printing press and its technological heirs, not just the freedom of some particular business group that one might call the press or the institutional media.

How do you respond to the position that the Press Clause has been forgotten or stripped of independent meaning? What evidence supports your counter argument?

If you look at what freedom of speech, or of the press, meant at the time of the framing—if you look at why the framers didn't just say "speech" but also said "press"—it's because if they said just "freedom of speech," it might be understood as just protecting people's ability to speak to one another, either one-on-one or maybe in a speech to a gathered crowd, but not communication using the printing press or other mass communication technology.

So, if they had said "freedom of speech" and only that, that would have potentially been limited. Instead, they said "freedom of speech or of the press" to cover both in-person communications and mass communication.

Now, it turns out that since then, precisely because freedom of speech and freedom of the press have been equally protected, "freedom of speech" has become a sort of stand-in for freedom of expression. It covers speech and press, and some other forms of communication as well.

But that's precisely because when the Constitution says, "freedom of the press," it provides a very important protection. Without it, the scope of what communication was protected might have been very limited. So, it's an important provision. It's not at all a superfluous provision, but its meaning is the right of everyone, the equal right of all people to use mass communication technology, and not some special rights for professional media.

In your view, how has the evolution of digital media and technology changed or reinforced your interpretation of the Press Clause?

One thing that we've seen with new technologies is that they've more than ever before blurred the line between institutional press and ordinary citizens.

For example, I have a blog called the Volokh Conspiracy. We have probably every weekday, maybe on average, about 15 to 20,000 pageviews. So, we're not huge like The Washington Post, but we're also not tiny. We're also associated with Reason magazine. We just happen to be on their website, although we're editorially independent. Does that make us "the press"? What about when we were independent, rather than hosted by Reason? What about when we had a much smaller audience?

If the law required courts to make such distinctions, it could end up being pretty vague and subjective, and could end up being applied differently to people who express different views. Fortunately, the Constitution doesn't require courts to draw these distinctions. Even if I was just one person posting to a couple of dozen people, I would be protected by the Free Press Clause.

You mention that governments in the 1600s and 1700s tried to constrain printing presses as particularly dangerous. Do you see parallels in today's debates about regulating social media platforms? How would your interpretation of the Press Clause apply?

Governments, from the invention of the printing press on, have long been concerned about mass communication technology because it's often particularly dangerous to government power and to establishment interests. It allows people who dissent from the orthodoxy to spread their views potentially very broadly.

There were long attempts to restrict supposedly dangerous material being spread through the printing press, just like today, there are attempts to restrict the spread of potentially dangerous material through social media. The freedom of the press makes clear that the government can't restrict speech just because it's widely shared, because the whole point of protecting the printing press was to protect the ability to communicate to the public at large. And that's equally true of the modern heirs of the printing press, like the internet.

So, freedom of speech or of the press is an important reminder that there is the right to communicate to the mass public, but not just the right of professional media. It's a right belonging to everybody.

What practical implications would adopting your interpretation have for current First Amendment jurisprudence? Would certain precedents need to be reconsidered or certain practices changed?

My view is actually that the Supreme Court's current precedents are quite correct. The Supreme Court has made it quite clear that the Free Press Clause doesn't provide special protection for the institutional media. There's still a question of what kind of protection it offers more generally, for instance what restrictions there should be on defamation lawsuits. But whatever protection it provides is equally shared among the big newspapers and ordinary citizens and advocacy groups and political activists and anybody else.

So, my view doesn't require changing precedents. The view of the people I’m debating would be the one that requires changing the precedents; it would require the court to say, "Well, no, certain kinds of institutions get special rights under the Free Press Clause." That might mean they get extra rights beyond what other people don't get, or it might mean that other people will lose rights that are already currently recognized and that would instead end up being limited just to the institutional media.

So that would require change to precedents. That's not inherently wrong: sometimes precedents ought to be changed. Here, though, I think that the precedents are correct, and that the Free Press Clause provides an equally shared right, a right that belongs to all Americans, whether or not they're members of the institutional media.