Volume 85, No. 2, Winter 2013

Using the Press Clause to Amplify Civic Discourse Beyond Mere Opinion Sharing

The First Amendment unambiguously proclaims that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The First Amendment’s Speech Clause primarily bears the deliberative weight of protecting and maintaining the discursive space of America’s self-governing democracy. It has done so by indiscriminately protecting a broad array of expression from government intrusion. As a result, the Speech Clause has democratically legitimized such expression in America’s civic discourse. This legitimization is essential to a more deliberative democracy. The Speech Clause’s legitimizing function, however, has not helped to advance another essential element for a well-functioning deliberative democracy, namely, democratic competence. Instead, it has hurt it. Democratic competence relates to the cognitive empowerment of citizens within civic discourse and requires, at a minimum, deliberation-enhancing end-products and exchanges, grounded in factual truth and disclosure of corporate or government sponsorship when applicable. The protective scope of the Speech Clause has ironically contributed to the current floodgates in American civic discourse of the opposite—unsubstantiated commentary, rumor, and manipulative spin. Developments in technology, citizen journalism, and online blogging have exacerbated this cacophony and discourage the production of deliberation-enhancing end-products and exchanges.

This Article turns to the Press Clause to advance democratic competence and to in turn amplify civic discourse beyond mere opinion sharing. It aims to do so by incentivizing the production and dissemination of deliberation-enhancing end-products. In so doing, this Article proposes a new justification for the Press Clause, whose justification has long been the source of controversy and debate, and provides a reinvigorated way of looking at that Clause and its utility within the larger constitutional structure. This Article’s proposal leaves intact the Speech Clause’s expansive reach and legitimizing function, while proposing an alternate basis of constitutional protection for a narrower category of speech—deliberation-enhancing end-products. Moreover, using the Press Clause in this manner provides a constitutional framework through which exclusive privileges may be awarded to anyone who produces these qualifying end-products. These privileges can therefore be made available to others besides members of the traditional news media who are currently the primary beneficiaries of such privileges. Civic discourse can, as a result, be opened up without sacrificing the long-acknowledged value of deliberation-enhancing end-products to civic discourse.

85 Temp. L. Rev. 269