Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
2013]
THE LANDMARK THAT WASN’T
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Greenmoss Builders and was replaced by Justice Sandra Day O’Connor. That debate had already played itself out in academia and in a number of non-defamation cases (most notably the Court’s 1978 decision in First National Bank of Boston v. Bellotti19), with Justices at both ends of the Rights. Freedom of speech was a late addition to the pantheon of rights; freedom of the press occupied a central position from the very beginning.”); Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 STAN. L. REV. 927, 933 (1992) (“Whether or not we believe that press freedom ranked at the very pinnacle of constitutional values, it surely was of great importance, and the First Amendment was designed to protect the freedom of the press by putting, in Jefferson’s words, a ‘legal check . . . into the hands of the judiciary.’”) (quoting Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 THE PAPERS OF THOMAS JEFFERSON 1788–1789 659 (1958)); Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. REV. 1497, 1505 (2007) (noting that the First Amendment’s language suggests that the press deserves special First Amendment protections); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does it Add to Freedom of Speech?, 26 HASTINGS L.J. 639, 658 (1975) (“[F]reedom of the press as a right recognizably distinct from that of freedom of speech is an idea whose time is past due.”). But see David Lange, The Speech and Press Clauses, 23 UCLA L. REV. 77, 118 (1975) (“I submit that the goal of first amendment theory should be to equate and reconcile the interests of speech and press, rather than to separate them.”). 19. 435 U.S. 765, 782 (1978) (“[T]he press does not have a monopoly on either the First Amendment or the ability to enlighten.”); id. at 802 (Burger, C.J., concurring) (“Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.”); see also Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (holding that “[t]he media have no special right of access to [prisons] different from or greater than that accorded the public generally”); Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 609 (1978) (“The First Amendment generally grants the press no right to information about a trial superior to that of the general public.”); Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974) (“Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.”) (quoting Pell v. Procunier, 417 U.S. 817, 834 (1974)); id. at 857 (Powell, J., dissenting) (“The guarantees of the First Amendment broadly secure the rights of every citizen; they do not create special privileges for particular groups or individuals.”); Pell v. Procunier, 417 U.S. 817, 833 (1974) (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”) (quoting Branzburg v. Hayes, 408 U.S. 665, 684 (1972)); Citizen Pub. Co. v. United States, 394 U.S. 131, 140 (1969) (“Freedom to publish means freedom for all and not for some.”); Estes v. Texas, 381 U.S. 532, 589 (1965) (“[A] reporter’s constitutional rights are no greater than those of any other member of the public.”); Associated Press v. NLRB, 301 U.S. 103, 132–33 (1937) (“The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.”); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 735 (1931) (“Story defined freedom of the press guaranteed by the First Amendment to mean that ‘every man shall be at liberty to publish what is true, with good motives and for justifiable ends.’”) (quoting JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1880 (5th ed. 1891)); see also Lee Levine, Note, The Editorial Function and the Gertz Public Figure Standard, 87 YALE L.J. 1723, 1723–24 n.6 (1978) (noting that the history of the press clause and the evolving nature of the press as an institution, among other things, militates against conclusion that the First Amendment protects institutional press more than any other citizen); Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. PA. L. REV. 459, 465 (2012) (concluding that “any calls for specially protecting the press-as-industry