Despite its origins in the context of printing, freedom of the press has come to be interpreted as protecting communication to the public generally, regardless of the medium. Print media, motion pictures, broadcasting, cable television, and even the mails have come to be considered as the “press” for purposes of the First Amendment. As the U.S. Supreme Court has said, "[press] comprehends every sort of publication which affords a vehicle of information and opinion.”
Moreover, while some have argued that freedom of the press was only intended to shield the dissemination of news and opinion, the protections of the First Amendment have been extended to protect scientific, literary, and artistic messages as well.
The printing press provided, for the first time, a capability for mass communication, whereby one individual or organization could inform, entertain, or persuade many others. At the time the Constitution was written, publishing in the United States had not yet become the “mass medium” it is today. A craftsman printer produced one page at a time, and could produce about 2000 copies of it in a 10-hour day. The technology was inherently egalitarian; it took neither political power nor large sums of money for an individual to publish a work. The “freedom of the press” had a more or less literal meaning; government was prohibited from licensing or otherwise control ling the use of the technology.
In the two centuries that have passed since the ratification of the First Amendment, innovations in technology have added to the variety and power of the press, and have, as a consequence, changed the social, economic, and political impact that the press has had.
Changes to the legal environment in which the press operates have accompanied these technological changes. “Freedom of the press” has been extended to all forms of publishing, but real or perceived limitations on the technology — most notably, in the case of broadcasting — have nevertheless resulted in a patchwork of exceptions to the freedoms originally granted the printing press.
However, even broadcasting, with its national and now global audience, and its compelling use of images from all over the world, did not change the “one-to-many” nature of journalism that has characterized the press since the first era of printing. Although the number of broadcast organizations now far exceeds that of newspapers, legal and economic barriers to entering and successfully competing as a broadcaster have perpetuated this one-to-many character.
The emergence of the “Information Age” has raised the issue of what these technologies mean for the structure of communications, and consequently, for the way in which the press gathers and publishes information. In changing the way in which information is produced and disseminated, technology is changing who and what is considered "the press." New technologies not only augment the capabilities of the traditional press, but are giving rise to new forms of press, alien to the last 200 years of First Amendment jurisprudence.
Taken together, advances in technology suggest a fundamental shift from the concept of “press” to the concept of “network.” The past mode of one organization publishing for many has given way to a communications mode in which many share knowledge among themselves. One-to-many publication will no doubt continue, but has been joined by new and unfamiliar forms. Gathering, editing, and disseminating news and information, which traditionally was integrated in one organization, is becoming fragmented between many specialized entities. The electronic publisher of the future will act more as a clearinghouse for the exchange of news and information than as a gatherer. Global electronic networks allow the gathering, writing, filming, editing, and publishing of news to be decentralized among many organizations, which may sell one another specialized services.
One-to-many publishing will continue to coexist with one-to-one publishing, such as e-mail, and many-to-many publishing, such as computer conferencing. Each of these permutations may merge into the other under given circumstances — what started out as an electronic mail message may be integrated into a broadcast, which individuals may then store in a database, to be redistributed in different forms to different audiences. Specialized, individualized reports may be generated by one organization for a few subscribers or patrons, and distributed over electronic mail. Pieces of one message may be integrated into a whole and distributed to an audience larger or smaller than the original.
New forms of publishing will grow up alongside the “mass” communication that we are familiar with today. Individuals will be able to select the subject matter of the information they receive, and determine its format and manner of presentation. This processing may be done by consumers on their computers in their home or business, or it may be done further “up the line” by a website owner or ISP.
As a consequence of this shift from a centralized press with a uniform product to a decentralized network selling diverse services, the courts and Congress may face new questions of constitutional interpretation not presented when the press was a more or less distinct, identifiable institution. With the convergence of information processing with telecommunications, questions of categorization for purposes of the First Amendment — beyond those of common carrier, broadcaster, and print publisher — are emerging.
Technology will further challenge distinctions between the freedoms of speech and press, “nonmedia” and “media” that were already difficult to make. Whether there is a difference between First Amendment rights of speech and press is a matter of disagreement among scholars, but practical consequences flow from it. Many of our 20th century assumptions about freedom of the press depended on notions of the press as a business, located in a community, dependent on the support of readers and viewers, committed to a regular cycle of publication and broadcast, managed by responsible persons, and striving — to some degree — for objectivity, balance, and a fair presentation of the facts. What if those elements change?
New questions of liability and potential for harm will also arise. Distinctions between primary publishers, secondary publishers, and republishers — which served to allocate responsibility for defamatory publications — have become more difficult to make. Locating the “source” of inaccurate or false information that causes harm has proven elusive on electronic networks. The ability to search, store, and process large amounts of information on individuals has given rise to new concerns over the ongoing conflict between privacy and freedom of the press.
- Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (full-text).
- “The press as a mass medium awaited the industrial revolution; with its steam-driven power (and later rotary) presses, which increased production tenfold, and its new modes of distribution, its assembly line methods, and division of entrepreneurial functions.” Ithiel de Sola Pool, Technologies of Freedom (1983) (hereafter Technologies of Freedom).
- The importance of this concept must be understood in the context of the English law that preceded it, which granted the Stationers Company monopoly rights over printing and required government licensing to own and operate a printing press. Even after the ratification of the First Amendment in America in 1791, however, the exercise of this freedom could be severely curtailed and punished.
- The new capability for rapid, accurate, and mass publication provided by the printing press facilitated the speed with which the Protestant Reformation spread through Europe: “heralded on all sides as a ‘peaceful art,’ Gutenberg’s invention probably contributed more to destroying Christian concord and inflaming religious warfare than any of the so-called arts of war ever did.” Elizabeth Eisenstein, The Printing Press as an Agent of Change 319 (1979). Four centuries later, with live coverage of the civil rights movement in the American south, and riots in the north, east, and west, radio and television thrust the issue of racial equality before the American public in the 1960s. Television has also been credited with a major role in ending the United States’ involvement in the Vietnam War. Michael Mandelbaum, “Vietnam: The Television War,” Daedalus, Fall 1982, at 157.
- The inherent differences in the technology of print and that of broadcast, for example, led the Supreme Court to uphold the FCC’s regulation of “indecent” speech over broadcasting, because of broadcasting’s “uniquely pervasive presence on the lives of all Americans, ” and the fact that “prior warnings cannot completely protect the listener or viewer from unexpected program content.” Federal Comm. Comm’n v. Pacifica Found., 438 U.S. 726 (1978) (full-text).
- Scholars disagree over whether the distinction between the freedom of speech and the freedom of the press is of constitutional or legal significance. Former Supreme Court Justice Potter Stewart, for example, adhered to the view that [[freedom of speech], worship, assembly, and other liberties guaranteed by the Bill of Rights are substantive and individual in nature, while the freedom of the press is structural, and extends freedom of expression to an institution. “The publishing business is, in short, the only organized private business that is given explicit constitutional protection.” Potter Stewart, Or of the Press, 26 Hastings L.J. 631 (1975). Former Chief Justice Burger disagreed, arguing that “the First Amendment does not ‘belong’ to any definable category of persons or entities: it belongs to all who exercise its freedoms.” First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (full-text) (Burger, J. concurring).