Saving the Press Clause from Ruin: The Customary Orgins of a "Free Press" as Interface to the Present and Future

If the Supreme Court were to reinterpret the Press Clause in accordance with the historical findings set forth in this Article, what would be the result? As explained more fully below, the Court would alter current Press Clause jurisprudence in three significant respects. First, the difficulty of defining the institutional press would be alleviated: the definition would focus on newsgathering organizations that investigate and report on the activities of government. Second, the leading Press Clause precedents outlined above— particularly Branzburg, Zurcher, and Pell—would be overruled as wrongly decided.

Third, a new doctrine—recognizing greater press access to newsworthy events and information under government control—would have to be developed.