Why the New York Times was right to publish Michael Kinsley’s views about the freedom of the press.

Glenn Greenwald has a new book out about Edward Snowden, and Michael Kinsley has a review of it in the New York Times. In the review, Kinsley argues that the Constitution’s free speech and free press protections don’t create special rules for journalists or the institutional press. And Kinsley argues that therefore the government ultimately must have some ability to regulate the disclosure of classified information by journalists and the institutional press.

This part of Kinsley’s review has provoked sharp disagreement from the New York Times’s public editor, Margaret Sullivan, who writes:

Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well. What if his views were taken to their logical conclusion? Picture Daniel Ellsberg and perhaps the Times reporter Neil Sheehan in jail; and think of all that Americans would still be in the dark about — from the C.I.A.’s black sites to the abuses of the Vietnam War to the conditions at the Walter Reed Army Medical Center to the widespread spying on ordinary Americans.

Yes, as Ms. Paul rightly noted to me, it’s true that a book review is not an editorial, and the two shouldn’t be confused. And she told me that she doesn’t believe that editing should ever change a reviewer’s point of view. But surely editing ought to point out gaping holes in an argument …. that didn’t happen here.

A Times review ought to be a fair, accurate and well-argued consideration of the merits of a book. Mr. Kinsley’s piece didn’t meet that bar.

The links from Ms. Sullivan’s piece notwithstanding, it’s hardly “clear[]” that the constitutional freedom of the press is about giving a special role to journalists or the institutional press. The point has been made thoroughly and very persuasively by co-blogger Eugene:

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not protect the press-as-industry, but rather protects everyone’s use of the printing press (and its modern equivalents) as a technology. People or organizations who occasionally rent the technology, for instance by buying newspaper space, broadcast time, or the services of a printing company, are just as protected as newspaper publishers or broadcasters.

Under this approach, the First Amendment rights of the institutional press and of other speakers rise and fall together. Sometimes, this approach is used to support protection for non-institutional-press speakers and to resist calls for lowering that protection below the level offered to institutional-press speakers. At other times, it is used to rebut demands for greater protection: Extending such protection to all speakers, the argument goes, would excessively undermine rival government interests — yet allowing such protection only for the institutional press would improperly give the institutional press special rights.

Both sides in the debate often appeal at least partly to the constitutional text and its presumed original meaning. The words “the press” in the First Amendment must mean the institutional press, says one side. The words must mean press-as-technology, says the other. Citizens United is unlikely to settle the question, given how sharply the four dissenters and many outside commentators have disagreed with the majority. So who is right? What light does the “history” referred to by the Citizens United dissent shed on the “text” and the Framers’ “purpose”?

The answer, it turns out, is that people during the Framing era likely understood the text as fitting the press-as-technology model — as securing the right of every person to use communications technology, and not just securing a right belonging exclusively to members of the publishing industry. The text was likely not understood as treating the press-as-industry differently from other people who wanted to rent or borrow the press-as-technology on an occasional basis.

But Ms. Sullivan does not rebut or even mention the arguments against her view. Indeed, she suggests that Kinsley’s view (which is consistent with Eugene’s, above) has “gaping holes,” isn’t “fair, accurate and well-argued” and is so “clearly” wrong that “editors should not have allowed [it] to stand.” With all due respect, that seems wrong.

Maybe other aspects of Kinsley’s review are unfair (as Sullivan separately discusses), I don’t know. (For another, quite critical, review, see Ben Wittes.) And maybe we should have significantly more relaxed classified information laws. But Kinsley’s view that journalists have the same constitutional rights (with the same limits) as other citizens is probably correct — and the New York Times book review certainly shouldn’t be ashamed to publish it.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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Eugene Volokh · May 27, 2014