[EL] Cruz op-ed on proposed constitutional amendment

[Justin Levitt]

There are indeed cases where the Court seems to refer to "the press" as 
an industry (the NYT excerpt is a concurrence, I believe), though that 
characterization is rarely dispositive of the constitutional question.   
There are other cases where it takes a different approach.  (For 
example, Justice Scalia's concurrence in /Citizens United/.)

My point is simply that whatever the press actually means for First 
Amendment purposes, "the press" in SJ Res 19 almost certainly reflects 
the understanding in your excerpt -- that it refers to a specific 
industry.  That's an approach with a lot of very thorny consequences 
with respect to who's in and who's out (and who decides).  And it has 
the potential to change our understanding of "the press" not only for SJ 
Res 19, but _also_ for purposes of the First Amendment more generally 
(and outside of the campaign context), because the construction of the 
constitution (including pre-existing provisions) may change with each 
amendment. ___

_Justin

  

On 6/4/2014 4:06 PM, Daniel Abramson wrote:
> 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 
> <mailto: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 <mailto: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 <tel:425.822.9281> Ext. 7321
>>
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