Focusing on How Rather Than on Whom: Constructing a Process-Based Framework for Interpreting the Press Clause in the Network-Society Era

Abstract

The Internet has made it possible for anyone to become a publisher, thus raising questions regarding how the press clause of the First Amendment will be defined in the twenty-first century. This study proposes a process-based framework for understanding the press clause that moves away from the historically problematic questions that arise with approaches that seek to determine who is a journalist. This approach aligns with historical conceptualizations of the press clause and the characteristics of the network society. The proposed framework is drawn from an analysis of recent lower-court cases in which citizen publishers claimed protections that have traditionally been associated with journalism, as well as an examination of the decisions of the Supreme Court of the United States and of legal scholars’ historical understandings of the clause.