First Amendment Commons^™

Favoring The Press, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …

The 'Press,' Then & Now, Sonja R. West

Scholarly Works

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the …

The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.

Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate …

The Stealth Press Clause, Sonja R. West

Georgia Law Review

As we reflect on the 50th anniversary of New York Times Co. v. Sullivan, there will likely be many tributes to Sullivan as one of the Supreme Court's most significant press cases. Yet Sullivan was not really a "press" case. The Supreme Court, in its opinion, granted all speakers greater protection against defamation liability regardless of whether they were a member of the press. Sullivan is not the only famous so-called "press" case that was not just about the press. Several more "not-just-the-press" victories followed in Sullivan's wake. New York Times Co. v. United States (the "Pentagon Papers case"), for …

The Dangers Of Press Clause Dicta, Ronnell A. Jones

Georgia Law Review

If an attorney, scholar, or citizen opened the 448th volume of the U.S. Reports to page 573, she would find herself midway through a case captioned Richmond Newspapers, Inc. v. Virginia. Context would make clear that the case was brought by a newspaper that wished to report on a criminal trial but was precluded from doing so when the trial judge closed the proceedings. The tenor of the analysis would foreshadow that the newspaper was on its way to a 7-1 victory and a holding that gave it the access it sought to the judicial proceeding. And the tone of …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …