Freedom of Expression: Is There a Difference Between Speech and Press? | U.S. Constitution Annotated | US Law | LII / Legal Information Institute

Use of the single word “expression” to reach speech, press, petition, association, and the like, raises the question of whether the free speech clause and the free press clause are coextensive, or whether one reaches where the other does not. It has been much debated, for example, whether the “institutional press” is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”412 But, as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”413

Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.414 Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.415 “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”416 Yet, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to deference that others are not entitled to—that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Stewart’s word.417 What difference such “sensitivity” might make in deciding cases is difficult to say.

The most interesting possibility lies in the First Amendment protection of good-faith defamation.418 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from liability for libel or slander.”419 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,420 but the Court’s decision in First National Bank of Boston v. Bellotti that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state, regulations causes the evaporation of the supposed “conflict” between speech clause protection of individuals only and press clause protection of press corporations as well as of press individuals.421 The issue, the Court wrote in Bellotti, was not what constitutional rights corporations have but whether the speech that is being restricted is protected by the First Amendment because of its societal significance. Because the speech in Bellotti concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti’s emphasis upon the political nature of the contested speech, it is clear that the same principle—the right of the public to receive information—governs nonpolitical, corporate speech.422

With some qualifications, therefore, the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any, hazard of missing significant doctrinal differences.