In recent years the press has taken vigorous exception to decisions of the court circumcizing the protections the First Amendments extends to the press. I have dissented from many of these opinions as hampering, if not shackling, the press's performance of its crucial role in helping maintain our open society. I of course fully support the right and duty of the press to express its dissatisfaction with opinions of the court with which it disagrees. I am concerned, however, that in the heat of the controversy the press may be misapprehending the fundamental issues at stake.
The source of the press's particular bitterness can, I believe, be identified. It stems from the confusion of two distinct models of the role of the press in our society that claim the protection of the First Amendment. Under one model -- which I call the "speech" model -- the press requires and is accorded the absolute protection of the First Amendment. In the other model -- I call it the "structural" model -- the press's interests may conflict with other societal interests and adjustment of the conflict on occasion favors the competing claim.
The "speech" model is familiar. It is as comfortable as a pair of old shoes, and the press, in its present conflict with the court, most often slips into the language and rhetorical stance with which this model is associated even when only the "structural" model is at issue.
According to this "speech" model, the primary purpose of the First Amendment is more or less absolutely to prohibit any interference with freedom of expression. The press is seen as the public spokesman par excellence . Indeed, this model sometimes depicts the press as simply a collection of individuals who wish to speak out and broadly disseminate their views. This model draws its considerable power -- I emphasize -- from the abiding commitment we all feel to the right of self-expression. So far as it goes, this model commands the widest consensus. In the past two years, for example, the court has twice unanimously struck down state statutes which prohibited the press from speaking out on certain subjects, and the court has firmly rejected judicial attempts to muzzle press publication through prior restraints. The "speech" model thus readily lends itself to the heady rhetoric of absolutism.
The "speech" model, however, has its limitations. It is a mistake to suppose that the First Amendment protects only self-expression, only the right to speak out. I believe that the First Amendment in addition fosters the values of democratic self-government. The amendment also forbids the government from interfering with the communicative processes through which we citizens exercise and prepare to exercise our rights of self-government. The individual right to speak out, even billions of such rights aggregated together, will not sufficiently protect their social interests. It is in recognition of this fact that the court (in Grosjean v. American Press Co .) has referred to "the circulation of information to which the public is entitled in virtue of the constitutional guarantees."
Another way of saying this is that the First Amendment protects the structure of communications necessary for the existence of our democracy. This insight suggests the second model to describe the role of the press in our society.
This "structural" model of the press has several important implications. It significantly extends the umbrella of the press's constitutional protections. The press is not only shielded when it speaks out, but also when it performsall the myriad tasks necessary for it to gather and disseminate the news. As you can easily see, the stretch of this protection is theoretically endless. Any imposition of any kind of the press will in some measure affect its ability to perform protected functions.
Therefore this model requires a court to weigh the effects of the imposition against the social interests which are served by the imposition. This inquiry is impersonal, almost sociological in nature. But it does not fit comfortably with the absolutist rhetoric associated with the first model of the press I have discussed. For here, I repeat, the court must weight the effects. of the imposition inhibiting press access against the social interests served by the imposition.
For example, the reporters in Branzburg v. Hayes argued that if they were compelled to reveal confidential sources or notes before a grand jury, their ability to gather the news would be impaired. The case did not involve any substantive restrictions on press publications. The contention of the press was simply that reporters must be excused from duties imposed on all other citizens, because the fulfillment of those duties would impair the press's ability to support the structure of communications protected by the First Amendment. In its decision, the court acknowledged that First Amendment interest were involved in the process of news-gathering, but concluded that these interests were outweighed by society's interest in the enforcement of the criminal law.
Similarly, in zurcher v. Stanford Daily , a student newspaper contended that its offices could not be searched, as is usually the case, upon the issuance of a valid search warrant, but that a subpoena, which give the newspaper the opportunity to contest the search in advance was necessary. Again, the issue was not any restriction on what the newspaper could actually says but, rather, whether special procedures were necessary to protect the press's ability to gather and publish the news. Once again, the court held that whatever First Amendment interests were implicated were outweighed by society's interest in law enforcement.
Both these cases struck vehement, if not violent, reactions from the press. The reason, I think, is that the press, in order to strengthen its rhetorical position, insisted on treating these cases exactly as if they involved only the traditional model of the press as public spokesman. The Washington Star, for example, argued that "it matters all too little whether abridgement takes the obvious forms of suppression and censorship, or the casual rummaging of a newspaper office on a search warrant."
Of course, as I have been trying to make clear, it matters a great deal whether the press is abridged because restrictions are imposed on what it may say, or whether the press is abridged because its ability to gather the news or otherwise perform communicative functions necessary for a democracy is impaired. the two different situations stem from two distinct constitutional models of the press in our society, and require two distinct forms of analysis. m
The strong, absolutist rehetoric appropriate to the first model is only obfuscatory with respect to the second. The tendency of the press to confuse these two models has, in my opinion, been at the root of much of the recent acrimony in press-court relations. The press has reacted as if its role as a public spokesman were being restricted, and, as a consequence, it has on occasion overracted.