[EL] Cruz op-ed on proposed constitutional amendment

[Daniel Abramson]

Justin,

I agree that Eugene Volokh's argument that the framers intended the word
"press" to refer to a means of a communication is persuasive.  However,
correctly or not, modern courts often treat the press as an industry with
special status under the First Amendment.  For example, see this excerpt
from the Supreme Court's Pentagon Papers decision:

"Both the history and language of the First Amendment support the view that
the press must be left free to publish news, whatever the source, without
censorship, injunctions, or prior restraints.
In the First Amendment the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The
press was to serve the governed, not the governors. The Government's power
to censor the press was abolished so that the press would remain forever
free to censure the Government. The press was protected so that it could
bare the secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in government. And
paramount among the responsibilities of a free press is the duty to prevent
any part of the government from deceiving the people and sending them off
to distant lands to die of foreign fevers and foreign shot and shell. In my
view, far from deserving condemnation for their courageous reporting, the
New York Times, the Washington Post, and other newspapers should be
commended for serving the purpose that the Founding Fathers saw so clearly.
In revealing the workings of government that led to the Vietnam war, the
newspapers nobly did precisely that which the Founders hoped and trusted
they would do."  New York Times Co. v. United States, 403 U.S. 713, 717, 91
S. Ct. 2140, 2143, 29 L. Ed. 2d 822 (1971)

It certainly appears that the Court is conflating the "press" with the
newspaper industry.

Daniel


On Wed, Jun 4, 2014 at 2:47 PM, Justin Levitt <levittj at lls.edu> wrote:

>  John mentions that "Press" as used in the First Amendment refers to a
> means of communication, not a particular industry.  Eugene Volokh's made
> the same point, and persuasively so.
>
> But "press" as used in SJ Res 19 hasn't been construed yet, and we're not
> sure how "press" as used in a wholly-hypothetical 28th Amendment would be
> construed.  The sponsors seem to believe that it refers to an industry.
> (The problems with defining the contours of said industry are, of course,
> legion.)  And it's a little hard to believe that courts would construe
> section 3 of an amendment to "undo" much of section 1 of that same
> amendment.
>
> The broader point is that a new amendment yields new construction -- some
> of which may be consistent with past constructions of other portions of the
> constitution, some of which may not.  Amending the document amends the
> document.
>
> (FWIW, I'm not a fan of the new amendment either.  The "press" issue is
> just one reason.)
>
> Justin
>
>  On 6/4/2014 2:32 PM, Rick Hasen wrote:
>
> Message from John White, who is having trouble posting:
>
>  *From:* John White
> *Sent:* Wednesday, June 04, 2014 1:39 PM
> *To:* 'law-election at uci.edu'
> *Subject:* RE: [EL] Cruz op-ed on proposed constitutional amendment
>
>
>
> It seems that section 3 undoes the rest of the proposed amendment at the
> federal level.  “Press” as used in the First Amendment refers to a means of
> communication, not a particular industry – in much the same way as it
> prohibits restriction on speech.
>
>
>
> However, the proposed amendment’s limitation on abridging freedom of the
> press is not extended to the states.
>
>
>
>
>
>
>
>   *John J. White, Jr.*
>
> 425.822.9281 Ext. 7321
>
> Bio <http://livengoodlaw.com/person/john-j-white-jr/> | vCard
> <http://livengoodlaw.com/wp-content/uploads/2014/03/John-J.-White-Jr-Livengood-Alskog-Pllc.vcf>
> | Address <http://livengoodlaw.com/contact-us/> | Website
> <http://livengoodlaw.com/>
>
> white at livengoodlaw.com
>
> The contents of this message and any attachments may contain confidential
> information and be protected by the attorney-client privilege, work product
> doctrine or other applicable protection.  If you are not the intended
> recipient or have received this message in error, please notify the sender
> and promptly delete the message.  Thank you for your assistance.
> *Tax Advice Notice*: IRS Circular 230 requires us to advise you that, if
> this communication or any attachment contains any tax advice, the advice is
> not intended to be used, and cannot be used, for the purpose of avoiding
> federal tax penalties. A taxpayer may rely on professional advice to avoid
> federal tax penalties only if the advice is reflected in a comprehensive
> tax opinion that conforms to stringent requirements. Please contact us if
> you have any questions about Circular 230 or would like to discuss our
> preparation of an opinion that conforms to these IRS rules.
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140604/d8730627/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/jpeg
Size: 2928 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140604/d8730627/attachment.jpe>