Matthew Schafer (Fordham University School of Law) has posted "'The Press': A Response to Professor Volokh." The abstract:
For more than a decade, Professor Eugene Volokh’s
article—Freedom For The Press As An Industry, Or For The Press As A
Technology? From The Framing To Today—has been recognized as the
authoritative work on the meaning of press freedom at the Founding. In
it, Volokh argued that the Press Clause’s reference to “the Press” meant
the printing press as a technology rather than as the journalistic
enterprise we recognize today. On that basis, he concluded that the
Founding generation understood the Press Clause not as providing special
rights for the institutional press but as securing every man’s right to
use the printing press. Those in favor of a Press Clause that specially
protected the press, he said, must look elsewhere than the text or
history of that Clause.
This
Article calls Volokh’s into doubt. By examining his sources and
reasoning, I show how he misunderstood the historical record and drew
conclusions unsupported by it. Specifically, Volokh’s inquiry suffered
from three problems: conceptual (defining “the Press” does not define
the meaning of the Press Clause at the Founding), evidentiary (too
little, too unpersuasive), and methodological (he followed none). I then
explain that two premises on which Volokh based his article—that the
newspaper industry at the Founding was insignificant and practiced no
real journalism—are contrary to the historical record and academic
consensus. Contrary to Volokh’s view that press-specific rights are a
modern invention, I finally provide examples of them from the Founding
era and posit that early Americans recognized such rights because they
understood them ultimately to inure to the benefit of the public in the
form of the news. The news, in turn, helped secure public liberty. I
close by calling on Volokh to revisit his thesis.
Read on here.
-- Karen Tani
