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The Press Clause Needs Teeth: The Case for Strengthening Constitutional Press Protections at Protests

By Ryan Liston. Full Text.

Journalists and the government have often had a tense relationship because of journalism’s watchdog role. In recent years, that tension has reached a boiling point. Law enforcement arrested journalists at an unprecedented rate in 2020, primarily while they were covering racial justice protests after Minneapolis police officer Derek Chauvin murdered George Floyd. Given the press’s watchdog role, the presence of journalists at protests criticizing government action (such as police brutality) is particularly important. Moreover, law enforcement seemingly targeted the press at these protests, even when they clearly presented themselves as journalists.

In Minnesota and Oregon, hotspots for these protests, courts responded by issuing injunctions which prohibited law enforcement from arresting journalists or enforcing dispersal orders and curfews against them, among other things. While these injunctions were welcome developments, neither are a permanent solution. The injunctions do, however, provide a helpful template for establishing constitutional protections for journalists covering protests.

The First Amendment reads, in part, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” This language establishes the Speech Clause and the Press Clause.

While the Supreme Court has developed robust Speech Clause protections, it has not identified any constitutional protections arising from the Press Clause alone. Indeed, when ruling in favor of journalists and news organizations, the Court has typically referenced both the Speech and Press Clauses. In many cases, this makes sense since the cases involve published material or information that is about to be published, making it natural to invoke both clauses. However, the Court’s hesitance to rely solely on the Press Clause means journalists enjoy few constitutional protections for newsgathering practices.

Legal scholars, judges, journalists, and others have proposed several competing interpretations of the Press Clause. This Note identifies four dominant interpretations: Press as Publication, Press as a Technology, Press as Established Organizations, and Press as a Function. After discussing what each interpretation means and assessing each interpretation’s validity, this Note asserts that the Press as a Function interpretation is the best because it is both faithful to Founding Era values and appropriate for the state of journalism today with many journalists working as freelancers or independently.

Under the Press as a Function interpretation, individuals exercising press functions are entitled to constitutional protections. In the protest context, these protections could be modeled off the Minnesota and Oregon injunctions. Specifically, journalists covering protests would not be subject to arrests, curfews, dispersal orders, or other law enforcement actions, so long as the journalists are acting lawfully.

Finally, this Note considers how to identify journalists at protests by considering two options: government credentialing and totality of the circumstances. This Note disfavors a government credentialing system and prefers a totality of the circumstances approach.