America enjoys a love-hate relationship with the press. The press often evokes warm feelings of admiration and respect. But it also evokes hard feelings based on distortion, arrogance, and trivialization. Neither feeling is wrong; neither is right. Can we make some sense out of our conflicting emotions?

The First Amendment to the Constitution states that “Congress shall make no law . . . abridging the freedom of . . . the press.” It is from this inspiring and definitive, yet terse and ambiguous, sentence that everything we know as the press’s freedom springs. What is this thing we call the...

Why does the First Amendment guarantee “the freedom of the press”? Is the press’s freedom protected as an end in itself, a core principle of liberty? Or is the press’s freedom a means to a larger end? Is the press free because its freedom is an essential ingredient of the constitutional order of things, a means by which people can obtain information from sources outside the formal channels of government and its instrumentalities? Does the press’s freedom consist, at its core, of independence from government, an independence that, ironically, is necessary to the functioning of government under the Constitution?

The...

The First Amendment provides that “Congress shall make no law abridging the freedom of speech or of the press.” What distinguishes press expression from free speech, which is separately mentioned? Some scholars have argued that there is no difference. The press’s freedom was mentioned simply to make certain that newspapers, pamphlets, and other publications were not left out. This is a possible explanation. Yet redundancy is not a common feature of the Constitution. And considering the notes and writings surrounding the drafting and ratification of the Bill of Rights, there seems little doubt that the drafters of the First Amendment...

When we think of the “press,” we ordinarily think of “news”—current information and opinion on matters of government, politics, economics, and social affairs. This intuitive definition pretty well captures the term used in England as the press was struggling to emerge from beneath the heavy hand of control by the Crown, enforced through the hated stamp. There the battle cry was for independent information on matters of “politics and political economy.”¹

Most people would likely agree that news is a medium of nonfiction consisting of information and opinion focused on current events and issues or relevant to understanding them....

The press is perhaps most widely and persistently reviled and feared for its power to invade personal privacy. Instances of outrageous publication are not hard to find: a photograph of a small child in midair as he falls to his death from a ten-story window, with his mother watching in stark terror from below; medical records and photographs of pitiful men confined against their will in a run-down mental hospital, hopeless and abused. There are many other examples, two of which we shall turn to in this chapter. What is interesting about press violations of privacy, however, is not that...

Must the press be free to trespass, break and enter, employ deceit, violate its own promises, and invade privacy, all in the name of getting the facts and the story? Should the means by which information is gathered be left largely to the press’s own judgment? Is there some special quality that marks the press’s judgment, allowing the press to claim the right to do things that would be strictly prohibited if done by individual speakers?

Those responding affirmatively claim that the information so obtained by the press may prove valuable and that if control over the press’s access to...

In a wonderful, yet little-known, volume titled History of the Taxes on Knowledge, which recounts the struggle against the Stamp Act in eighteenth- and nineteenth-century England, Collet Dobson Collet, the author and chronicler, begins with the following fictional account: “When the King of the Tonga Isles, in the Pacific Ocean, was initiated by Mr. Marriner, the missionary, into the mysteries of the art of writing, he was alarmed at the idea of his subjects learning to read: ‘I should,’ he said, ‘be surrounded with plots.’”¹

A free press is a “bulwark of liberty,” an essential restraint on tyranny—perhaps even...