Abrams Institute Report Assesses the Future of the Press Clause

The Floyd Abrams Institute for Freedom of Expression at Yale Law School released a comprehensive report, “The Press Clause: The Forgotten First Amendment.” The report concludes that the First Amendment provision protecting freedom of the press has been all but ignored by the U.S. Supreme Court and that the media and public would be well-served by a significantly expanded reading and application of that provision. 

Read the report: The Press Clause: The Forgotten First Amendment

The report addresses the increasingly difficult challenges that now exist for the American press. Over half of U.S. counties now lack any news outlets, and much of the industry faces serious financial difficulties. At the same time, journalists are facing increased risk of violence, harassment, arrest, and civil legal battles in their efforts to inform the public, according to the report.

The First Amendment explicitly protects freedom of the press — it is the only commercial enterprise mentioned in the Constitution — but as the report makes clear, courts generally treat the clause of the First Amendment that explicitly protects the press as having no independent meaning apart from the more general protection of freedom of speech. That critical portion of the First Amendment has thus become essentially without meaning, the report states. The report shows how the press clause of the First Amendment can be used to protect journalists from being jailed for just doing their jobs.

The report was authored by Floyd Abrams ’59, founder of the Abrams Institute for Freedom of Expression at Yale Law School; Sandra Baron and Lee Levine ’79, both experienced media lawyers; Jacob Schriner-Briggs ’21, a visiting assistant professor at Chicago-Kent College of Law; and Isaac Barnes May ’24, resident fellow at the Abrams Institute. The report is intended to be useful to lawyers, scholars, legislators, policymakers, and journalists.

The report’s recommendations are the result of over a year of expert consultations. Funded by a grant from the Stanton Foundation, the report’s co-authors and a group of media lawyers and legal scholars participated in a series of workshops across the United States to examine the relationship between journalism and the First Amendment. Over the next year, the project will continue, working with media law professionals and others to consider ways to implement the reforms proposed in the report. 

The Abrams Institute for Freedom of Expression was founded to promote freedom of speech, freedom of the press, and government transparency. Its work seeks to bring together the legal academy and the bar in productive collaborations that further scholarship and legal practice. It functions as part of the Information Society Project, an interdisciplinary scholarly community at Yale Law School that explores issues at the intersection of law, media, technology, and society.

The report has been published in The Journal of Free Speech Law and is available online.