I'm inclined to agree with everything you've said. I really hadn't thought that the particular distinction "or of the press" potentially implies a greater degree of protection for journalists than other citizens and I agree that it shouldn't be interpreted that way. Your point regarding Citizens United is a really interesting example of that for a few reasons. For one, I think it is generally viewed as a free speech case, which I've always taken for granted but you've given me something to chew on with the NYT comparison. Similarly, Schenck is a speech case but you could easily make an argument that both were exercising their press rights, Schenck with his pamphlets and Citizens United with their Hillary: The Movie. From my memory Citizens United made a comparison between themselves and Michael Moore as filmmakers and there was debate over whether one was a film (Fahrenheit 9/11) and one was electioneering (HTM), but if I remember correctly, ultimately each was simply considered speech. My Schenck comparison probably falls short because I believe the government actually did go after a few journalists with their powers from the Espionage Act, but it is still an interesting thought experiment to consider.Green Habit wrote:I actually think the way you describe it is very good, as I'll explain. But before you do, I should expound a bit further on what I've said, as I had to post that quickly before taking off for something else.4/5 wrote:Interesting. I haven't really thought of it like that before. I've always taught the First Amendment as a progression from the freedom to think what you want (religion) to the freedom to share what you think with others (speech) to the freedom to share what you think with a lot of other people that you don't know (press) to the freedom to join together with like minded people and demand that your speech be heard (assembly). But the article you linked to raises some interesting points regarding whether there is some extra speech protection granted to journalists as such a distinction between speech and press could imply.Green Habit wrote:Mainly the latter. Journalists obviously engage in speech, and are a very important part of it, but the idea that they somehow enjoy added protection via the First Amendment strikes as all kinds of illogical wrong.4/5 wrote:Can you elaborate on your free press statement? Are you arguing to include press within speech, or are you making a broader point about the correct way to interpret freedom of press? Or something else?
Edit: You linked to an article...let me read that and then maybe I'll understand what you're saying.
I see the "or of the press" phrase as a truism within the Free Speech Clause itself that, again, I think draws justification from what's included between those semicolons. (And spoiler alert: when we get to the Establishment Clause and so called "Free Exercise Clause", I feel the same way, which should be even more intriguing.) Freedom of speech, more accurately, freedom of expression, has very limited use if all that it grants is the ability to physically speak in public spaces. So in order for it to practically work, you also have to guarantee it via all vehicles of transmission, of which have expanded dramatically since the Founding.
The key reason why I think trying to make the "or of the press" phrase anything more than that runs into logical problems would be trying to determine who qualifies as a "journalist". I'll start with myself as a mundane example that's actually highly relevant on this day. Today is when I expect the NFL's compensatory draft picks to be released. I've devised a formula that tries to project what they are, and have written several articles on why I think this is what it's going to be. I don't consider myself a professional journalist by any means, but I have been cited by people who are. Yet I don't believe I have any less of a right under the Constitution to report on comp picks than the people who cite me.
For a more serious example, take expenditures used on campaign messaging (a controversial form of speech that I'm surprised you didn't mention in your list of types of speech you wanted to question), and more specifically the highly controversial Citizens United v. FEC case. This is the case that really opened my eyes to this. Citizens United is a nonprofit corporation whose goal is to express advocacy for their favored forms of government and society. The New York Times is a for-profit company that has an entire section devoted to expressing the same. Yet the idea that the NYT somehow has more legitimacy under the First Amendment to spend on distributing their point of their view than Citizens United makes no sense to me. (You can make the same argument about, say, the ACLU vs. the Wall Street Journal, or whatever combination you want.)
So getting back to what you teach your students, I think that teaching them that "freedom to share what you think with a lot of other people that you don't know" is a very important part of the Free Speech Clause and the First Amendment as a whole, and it should be taught. But I think that explanation helps strengthen the idea that that freedom should be granted to all, and not just those who have professional expertise in it.
With Citizens United, the way you frame speech/press I think changes the entire nature of the argument. Instead of arguing whether nonprofits or unions or corporations have free speech to engage in political expenditures it becomes an issue of why some people/corporations by virtue of being considered journalists were allowed free speech in the days leading up to an election when other people/corporations couldn't engage in basically the exact same behavior just because they weren't considered journalists. Maybe comparing themselves to the NYT or FOXNews, etc., would have been a better way for them to have gone. I'm kind of thinking out loud here, but it seems like this path could have saved them from the clunkier "corporations are people" route that the Court ultimately went.
