Courts have been reluctant to interpret the First Amendment’s Press Clause as providing the press with significant protections distinct from those provided to all of us by the Speech Clause. But courts could choose to do so, and litigants and scholars can help illuminate those choices. What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes – more specifically, what distinct functions does the press perform and what distinct vulnerabilities does the press possess?

In terms of distinct press functions, the press serves the public through its watchdog, educator, and proxy roles. The press performs a critically important checking function by reporting on the government’s performance, including its misconduct.Footnote ¹ The press informs the public about current affairs, science, health, the environment, art, entertainment, and much more. The press also serves as a proxy for the public by observing and reporting on events of importance to the public where the public does not have the time or other resources to observe those events directly.Footnote ²

These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: Because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Moreover, changes in the political environment (along with “the affordances of online social media platforms – anonymity, accessibility speed, and scale”Footnote ³) have aggravated threats to journalists’ physical safety, intensifying their vulnerability still further. As legal scholar Erin Carroll has detailed, “physical assaults against journalists in the United States increased nearly 1,400% in 2020” and “a 2018 study found that one in ten journalists surveyed had been threatened with death in the past year because of the work they do.”Footnote ⁴ So too have contemporary changes in technology exacerbated these vulnerabilities by posing existential challenges to the press’s financial survival.Footnote ⁵

“Negative” First Amendment theory, as I’ve written previously, “is about a negative value: distrust of government. And because the government gives us plenty of reason to distrust it, negative theory packs substantial power.”Footnote ⁶ Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, negative theory has long offered an important tool for understanding the Press Clause. And negative theory is now more valuable as an interpretive tool than ever, as press organizations and individual journalists are increasingly vulnerable to the government’s retaliation.

Among other things, negative theory can help us understand the Press Clause as providing an especially robust shield from the government’s retaliation – a shield different from that offered the public more generally by the Speech Clause precisely because of the press’s distinct functions and vulnerabilities. More specifically, directing judicial attention to the reasons to distrust the government’s adverse treatment of the press can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and their application of those rules once chosen.

A Press Clause doctrine informed by negative theory thus asks whether the government’s action gives us reason to worry that its choices have the intent and potential effect of muzzling the press as a watchdog.Footnote ⁷ “Affirmative” theories, in contrast, focus less on the government’s potential for regulatory abuse and more on the positive benefits of the press: Such theories urge that we interpret the Press Clause to provide the press with affirmative rights to newsgathering, like a right to receive information or access places not available to the public more generally.Footnote ⁸ Note, however, that applying negative theory to understand the Press Clause as providing a mighty shield against the government’s retaliation does not preclude us from also understanding the clause to afford the press with such affirmative rights.

Indeed, courts and commentators often rely on multiple theories when considering specific First Amendment problems.Footnote ⁹ For instance, the Speech Clause’s protection of political dissent from the government’s regulation can be explained in both negative terms (to guard against the government’s self-interested efforts to silence its critics) and affirmative terms (because political dissent valuably contributes to democratic self-governance, enlightenment, and autonomy).Footnote ¹⁰ In other words, “negative” and “affirmative” Press Clause theories are not mutually exclusive, and the different theories can cash out with different doctrinal yields.

11.1 The Government’s Retaliation Against the Press, Past and Present

We distrust the government’s regulation in settings where experience leads us to conclude that the government’s motives are self-interested or that its bias or competence is otherwise suspect. The framers of the Press Clause drew from exactly such experience, as they were all too aware of the government’s history of interfering with press freedom through press licensing and seditious libel.Footnote ¹¹ As Floyd Abrams has explained, “the Press Clause was, at the very least, a deeply felt response to the deprivations of press liberty that the colonists had witnessed and to which they had been subjected.”Footnote ¹²

One need not be an originalist, however, to interpret the Press Clause through the lens of negative theory. A structural understanding of the press’s key functions explains the government’s incentives for punishing and silencing the press: As Justice Potter Stewart explained, by providing the public with “organized, expert scrutiny of the government,” a “free press” provides a “formidable check on official power.”Footnote ¹³

Examples abound – both old and new – of the government’s propensity to stifle the press’s scrutiny. Recall, for instance, the calculated efforts by Alabama government officials in the 1960s to drive journalists covering the Civil Rights Movement out of the state;Footnote ¹⁴ their tactics included weaponized defamation claims like those made in The New York Times Co. v. Sullivan.Footnote ¹⁵

Consider, too, governments’ punishment of local papers’ critical scrutiny by pulling advertising from those papers or terminating contracts with them for printing legally required notices of tax sales, public meetings, and more. To be sure, governments have long engaged in such retaliation,Footnote ¹⁶ but newspapers’ contemporary financial instability leaves them especially vulnerable to such actions, which threaten a considerable chunk of their revenue.Footnote ¹⁷

As yet another illustration, think of the government’s not-so-unusual practice of punishing journalists or press outlets critical of its performance by banning them from attending press conferences or communicating with government officials. Recall, for instance, former President Donald Trump’s practice of revoking, or threatening to revoke, the White House press credentials of journalists whose questions or reporting criticized his administration’s performance.Footnote ¹⁸

So, we can find examples aplenty of the government’s retaliatory tendencies with respect to the press. What to do about it?

11.2 How Negative Theory Could Reinvigorate Press Clause Doctrine

The contemporary Supreme Court leans heavily on negative theory when developing and applying its Speech Clause doctrine. Consider, for instance, United States v. Alvarez,Footnote ¹⁹ where the Court struck down a federal law that criminalized intentional falsehoods about receiving military honors, a law that neither punished nor chilled any valuable speech.Footnote ²⁰ There, the Court relied on negative theory, focusing entirely on its distrust of the government’s potential for regulatory mischief: “Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.”Footnote ²¹

Other examples of the Court’s reliance on negative theory for Speech Clause purposes include Heffernan v. City of Paterson.Footnote ²² There, the Court upheld a First Amendment challenge to government officials’ demotion of an employee whom they mistakenly believed to have supported an opposition candidate. That the employee did not actually support – and thus had not engaged in protected political speech supporting – the candidate did not matter to the Court’s analysis. Instead, the government’s effort to suppress speech it perceived as threatening its political self-interest, by itself, violated the Speech Clause.

Yet the Court only occasionally invokes negative theory in its Press Clause cases. The rare exception – now four decades old – illustrates the rule: In Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, the Court invoked a hefty dose of negative theory to strike down a state’s taxing scheme that applied only to the press (a tax on paper and ink used in the production of periodicals like newspapers) and only to certain members of the press (those that annually spent more than $100,000 on ink and paper).Footnote ²³ The Court’s opinion reflected its deep distrust of the government’s motives and its censorial potential. Consider this, for example:

And this (where the majority explained the danger of enabling the state to single out the press for a different method of taxation even if the press’s tax burden were lighter than other businesses’):

Recognizing the law’s “potential for abuse,”Footnote ²⁶ the Court applied a version of strict scrutiny to strike it down.Footnote ²⁷

That negative theory is now so often absent from courts’ Press Clause jurisprudence explains much of their failure to understand the Press Clause as doing work independent of the Speech Clause. Consider now two ways in which the robust infusion of negative theory could reinvigorate Press Clause doctrine.

11.3 Informing Courts’ Choices of Press-Specific Rules

First, reliance on negative theory – that is, concern for the government’s capacity for, and the press’s vulnerability to, retaliation – could in certain settings generate very different Press Clause rules. Think, for instance, how the Court’s decision in Branzburg v. HayesFootnote ²⁸ might have turned out differently had it been informed by negative theory.

The Branzburg majority rejected the press’s argument that the Press Clause should be interpreted to provide journalists with a shield from law enforcement subpoenas requiring them to disclose their confidential sources. The Court instead concluded that the Press Clause confers the press with no distinct rights of its own, such that members of the press must comply with subpoenas along with everyone else. In so holding, the majority downplayed negative theory concerns, discounting reasons for distrusting the government’s exercise of its subpoena power specifically with respect to journalists:

The dissent, in contrast, credited reasons to fear the government’s potential to abuse its power to retaliate against the press – particularly in the grand jury setting, where “the judiciary has traditionally imposed virtually no limitations on the grand jury’s broad investigatory powers.”Footnote ³⁰ The dissent’s distrust of the government in this context thus led it to advocate a rule considerably less deferential to the government than the majority’s rule. Under the dissent’s preferred approach, the government would have been required to show probable cause to believe that a journalist has information “clearly relevant to a specific probable violation of law,” “that the information sought cannot be obtained by alternative means less destructive of First Amendment rights,” and that the government has a compelling need for the information.Footnote ³¹

As we can see, judicial awareness of the government’s incentives and capacity to retaliate against the press can support courts’ choice to apply Press Clause rules considerably more suspicious of the government.

11.4 Informing Courts’ Application of Existing Rules in Press Clause Cases

Second, negative theory can valuably inform courts’ application of rules already chosen. Under doctrine developed primarily for Speech Clause claims, an individual proves the government’s retaliation in violation of the First Amendment if they can show that (1) they engaged in speech or other activity protected by the First Amendment, (2) the government took action that would chill a person of “ordinary firmness” from continuing to engage in such speech or protected activity, and (3) the government’s action was substantially motivated by their speech or other protected activity.Footnote ³² Courts routinely apply this rule to retaliation claims brought by the press, just like any other speaker. Among the biggest barriers to the press’s success under this framework is its difficulty in convincing courts that the government’s action had the requisite potential to chill a person of “ordinary firmness.” Attending to the government’s self-interest in silencing critical coverage along with the press’s vulnerabilities to such retaliation, however, can lead to different results.

Consider, for instance, the difference that negative theory could have made in Baltimore Sun v. Ehrlich.Footnote ³³ There, the Fourth Circuit rejected a newspaper’s challenge to Maryland Governor Robert Ehrlich’s decision to bar state employees from speaking with two Baltimore Sun reporters because he was unhappy with those journalists’ coverage of his administration.

The Sun’s challenge emphasized negative theory concerns, taking pains to explain the burden of such actions on “small news organizations [that u]nlike The Sun … do not have sufficient resources to attempt to withstand such a blatant attempt to influence their coverage.”Footnote ³⁴ Along the same lines, the amicus brief filed by The Washington Post described in detail how the governor’s actions interfered with the press’s checking functions in ways that ultimately harmed the public: “All [who report on the Maryland state government] have effectively been warned that if they are critical of the Governor or his administration, they too can be denied access to information that they need to do their job.”Footnote ³⁵ This brief also underscored the vulnerability of smaller news organizations to actions like the governor’s, observing that “the problem is particularly acute for those newspapers covering state government with small staffs [who] can ill afford to have the Governor blackball anyone they assign to the State House.”Footnote ³⁶

Yet the Fourth Circuit rejected The Sun’s claim, concluding that the governor’s action would not have had a chilling effect on journalists of ordinary firmness. The panel held that “a reporter endures only de minimis inconvenience when a government official denies the reporter access to discretionary information or refuses to answer the reporter’s questions because the official disagrees with the substance or manner of the reporter’s previous expression in reporting.”Footnote ³⁷

But an opinion attentive to negative theory concerns – in other words, an opinion attentive to the reasons to distrust the government’s adverse treatment of the press or specific members of the press – would have supported a different result. More specifically, an opinion informed by negative theory would have recognized the threat posed to the press’s checking function in general (and to the work of smaller news outlets in particular) when punitively denied access to the information that makes quality reporting possible. Today, nearly twenty years later, the precarious financial state of most media organizations means that nearly all press outlets – not just smaller outlets – are acutely vulnerable to such restrictions. In other words, a decision informed by negative theory could apply the traditional three-part anti-retaliation rule to conclude that the governor’s action did indeed chill journalists of “ordinary firmness.”

Note too that negative theory could also support a court’s choice of an entirely different, more government-suspicious rule for evaluating such claims, as discussed above.Footnote ³⁸ In other words, courts could choose to apply strict scrutiny – thus requiring the government to bear a heavy burden in justifying its action – when the government singles out specific press speakers for disadvantageous treatment due to the critical content of their coverage.Footnote ³⁹ Indeed, this is the approach the contemporary Court purports to take for Speech Clause purposes whenever the government singles out specific messages for disadvantageous treatment.Footnote ⁴⁰

Relatedly, negative theory can inform courts’ capacious understanding of the ways in which the government can retaliate against the press. For instance, negative theory can help us understand how, under some circumstances, the government’s retaliatory lies, threats, or other speech can violate the Press Clause when they have the intent and effect of chilling journalists’ and press outlets’ critical coverage. Although the government’s speech is generally exempt from First Amendment review, the government’s speech can violate the Constitution when it interferes with its targets’ constitutionally protected choices or opportunities in ways that would violate a constitutional right if the government’s interference took the form of traditional lawmaking or regulation.Footnote ⁴¹

More specifically, the government’s speech can retaliate against press targets in violation of the First Amendment by changing the behavior of either of two sets of audiences: The government’s speech may cause third parties to retaliate against the government’s targets because of their protected activity, and the government’s speech may directly silence their targets.Footnote ⁴² Examples of the former, for Speech Clause purposes, include the Mississippi State Sovereignty Commission’s lies in the 1950s and 1960s to the employers, friends, families, and neighbors of civil rights activists – falsely asserting those activists’ sexual misconduct, financial improprieties, or illegal drug use – to silence their speech advocating desegregation.Footnote ⁴³ Examples of the latter include the government’s threats of criminal or economic punishment directly against its targets.Footnote ⁴⁴

A Press Clause doctrine informed by negative theory would look for evidence of the government’s retaliatory motives and chilling effects in its speech involving the press. For this reason, under some circumstances, the government’s expressive attacks rise to the level of retaliation prohibited by the Press Clause not only if they directly threaten their targets but also if they have the intent and effect of causing third parties to retaliate – physically or economically – against the press.Footnote ⁴⁵

***

In short, a Press Clause doctrine illuminated by negative theory would reflect awareness of the government’s incentives to retaliate against the press to disrupt the press’s scrutiny of the government. And a Press Clause doctrine illuminated by negative theory would recognize the press’s vulnerability to the government’s retaliatory efforts to undermine its checking function. In this way, attention to negative theory can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and by informing their application of rules once chosen.

The text of the First Amendment explicitly protects two foundational social institutions: religion and the press.Footnote ² Since 2021, however, the Supreme Court has increasingly granted one of these two institutions – religion – a status of heightened constitutional privilege. In a series of cases, the justices have extended what commentators have dubbed “most favored nation” status to religious organizations and activities.Footnote ³ As a practical matter, this means that in any given circumstance, the government may not treat religious groups and activities less favorably than it treats the best-treated secular group or activity. For example, if a COVID-era regulation prohibited indoor gatherings of more than ten people but exempted grocery stores, under this line of reasoning the government must give the same exemption to houses of worship. The Court has, moreover, required this privileged treatment of religion regardless of whether the government’s justification for the exemption applies or is relevant to the religious actor or activity.

This approach has been a sea change in religion law. Under late twentieth- and early twenty-first-century precedents, religion was deliberately treated as unexceptional, largely due to countervailing Establishment Clause concerns.Footnote ⁴ These cases dictated that the government was not only prohibited from favoring one religion over another but also could not favor religion over secular institutions or interest. Indeed, to avoid the entanglement of government and religion, the Court often permitted the government to treat religion less favorably – say, by providing government funding to pursue secular but not religious education.Footnote ⁵ That presumption has now flipped. Today, religion enjoys exceptional status.

In contrast, current law treats the other First Amendment institution – the press – as wholly unexceptional. However the press is defined – from newspapers to television to bloggers in pajamas to professional journalistsFootnote ⁶ – it receives no greater constitutional protections than any other speaker. The Court has essentially read the Press Clause out of the Constitution, voiding its specific textual commitment, despite the absence of any countervailing constitutional provision parallel to the Establishment Clause. Until religion law’s recent exceptional turn, the law’s treatment of religion and the press were in some sense parallel. Recently, they have diverged, as press law has not kept pace with changes in religion law.

In this chapter, I argue that the press should be treated at least as constitutionally exceptional as religion, and I explore what such press exceptionalism might mean in practice.

In addition to both being named in the constitutional text, the press and religion share important sociological similarities. Both promote core components of the freedom of belief through institutional organization – religion protects self-determination of faith, while the press safeguards democratic self-determination. History also supports interpreting protections for religion and the press in parallel, as do the text of the First Amendment and Bill of Rights when read as a whole. Like much of the Bill of Rights, the First Amendment aims to protect forms of organized action, belief, and dissent – in religion, in the press, and in assembly – that could counter the power of the newly established federal government. In light of the Court’s recent changes to religion law, courts and scholars should embrace a reading of the First Amendment that treats the press as the constitutionally exceptional institution that it is.Footnote ⁷

To identify how press exceptionalism should be organized, it is important to bear in mind that while the First Amendment’s protections for religion and the press are structurally and functionally similar, they protect related but distinct values and institutions. The religion clauses ensure the institutional prerequisites of freedom of faith; the Press Clause protects the institutional prerequisites of democracy. For this reason, courts should shape press laws’ exceptionalism around the role of the press as a democratic institution, focusing on how it uniquely supports and focuses informed public discourse, government accountability, and the robust exchange of ideas essential to self-governance.

12.1 The Gap Between the Exceptional Treatment of Religion and the Press

12.2 The Press as a Social Institution Analogous to Religion

The press should be understood as analogous not to other speakers but to religion. Just as religion is not just any type of belief system through which we can acquire values, morals, or ideas of right and wrong, the press is not just any speaker.Footnote ³² Both the press and religion fill fundamental societal roles as institutions that organize people into communities of common interests, beliefs, and purposes. These institutions not only structure and communicate ideas and values but also guide the attention and action of their followers. The press and religion are institutions that allow individuals to unite into groups with similar purposes, where they can accomplish common goals, meet challenges, and create meaning and community. Critically, both institutions provide essential platforms through which people can organize to oppose ideas, laws, or values with which they disagree.

It is important to recall that when the Bill of Rights was adopted, its rights applied only against the federal government, not the states.Footnote ³³ As a result, the Bill of Rights juxtaposed the people and the states with the federal government, a contrast most explicitly seen in the Ninth and Tenth Amendments. The Bill of Rights protected the self-determination and resistance of the people as organized into self-determining bodies, including states and religious orders. This served a dual purpose: It protected the autonomy of subnational communities while also providing bulwarks against excessive federal power. The First Amendment protected both subnationally established religions and subnational republican governance.

As a whole, the First Amendment can be understood as privileging the protection of various forms of organized self-determination and dissent: in religion, in the press, and in assembly.Footnote ³⁴ At the time of the founding, prior to the emergence of major political parties, the press and religion stood out as two of the most vital social institutions through which the people could stand up to more powerful actors. (Notably, the Second Amendment’s protection of organized militias served a similar purpose.Footnote ³⁵) Seen through this lens, the First Amendment’s parallel textual protection for “religion” and “the press” is a reflection of their similar social roles in fostering self-organization, self-determination, and self-protection.Footnote ³⁶

If religion is to be treated exceptionally, the press should be as well. In fact, there is justification for treating the press more exceptionally than religion. According to the constitutional text, the right to freely exercise one’s religion must be balanced against the countervailing concerns of the Establishment Clause, which safeguards against governmental support for, favoritism of, or entanglement with religion. Yet the First Amendment’s guarantee of a free press does not include a similar competing interest. At the very least, the exceptionalism of the press should be elevated to that of current religion law.

While the societal roles of religion and the press are similar, their specific purposes are not.Footnote ³⁷ The Constitution protects the press as a democratic institution. Democracies depend on forms of discourse and shared reality. They require elements of a shared world – shared facts, shared concern, and shared focus – which form the basis and the possibility of collective action through governance.Footnote ³⁸ It is for this reason that the First Amendment is “the guardian of our democracy.”Footnote ³⁹ The history of the origins of the Press Clause excavated by David Anderson supports this view.Footnote ⁴⁰ As he points out, on the eve of the Revolutionary War, the Continental Congress explained the need for “the freedom of the press”:

Anderson elaborates that while the continental charters did not protect press freedoms, by the founding, most state constitutions did – explicitly as protectors of self-government:

The advent of press clauses during the Revolution and their adoption both in the federal and most early state constitutions demonstrates the perceived importance of the press to self-government.

While religion and the press were adopted as parallel institutional bulwarks both of freedom and self-determination and against tyranny, the press serves a distinctly democratic purpose. For this reason, though the press and religion should be treated as institutional analogs for constitutional purposes, the doctrine should treat the press as exceptional in ways that reflect its organizing purpose to facilitate self-governance.

12.3 The Press as an Exceptional Democratic Institution

What would be the practical result if the press was treated as exceptional in ways oriented around its constitutional purpose? What would “most-favored-nation status” mean for the press – that is, for the press to receive equivalently favorable treatment as religion does under current law?

At a conceptual level, most-favored-nation status for the press could mean a number of things.Footnote ⁴³ It could mean (1) that if a law makes an exception for another speaker, the press must also receive that exception. That is, if any speaker receives a privilege, the press must as well. Or it could mean (2) that the press can, and sometimes must, receive rights or privileges that others do not. Courts and scholars should embrace both principles to harmonize press and religion law.

Practically, most-favored-nation status for the press could, for example, require that representatives of the press, however defined,Footnote ⁴⁴ have privileged access to governmental information – at least, as in the religion context, where access to that information is provided to any non-press private actor. This could include access to governmental institutions, such as jails, prisons, and other governmental buildings, as well as government documents, such as Office of Legal Counsel memos or records of closed-door legislative deliberations. The Press Clause could function as a sort of constitutionally grounded sunshine law, allowing the press to access, disseminate, and provide a basis for public action on governmental actions.Footnote ⁴⁵ A First Amendment doctrine that embraced the exceptional role of the press might likewise protect a reporter’s privilege not to disclose confidential sources or exempt the press from surveillance or searches in some contexts – at least as long as any non-press actor also had the same privilege, as, for example, an attorney might in the context of attorney-client privilege.

Most-favored-nation treatment for the press would also require the rejection of the current nondiscrimination theory of the press, which, as Sonja West has analyzed, prompted the Court in Citizens United to categorically extend First Amendment campaign expenditure rights to all corporations. Importantly, this could affect other areas of First Amendment law that currently depend on the equivalence of the press with all other speakers. Doctrine that recognized the exceptional status of the press could mean, for example, that campaign finance laws could limit non-press political expenditures more than press expenditures.

But press exceptionalism need not be constituted solely by negative rights against governmental action; it could require positive support for the press. Most importantly, it could mean constitutionally required funding for local news and public media. If a core purpose of the Press Clause is to disseminate shared facts and foster shared focus and concern – or, as the Continental Congress opined, “the advancement of truth, science, morality, and arts in general,” the “diffusion of liberal sentiments on the administration of Government,” “communication of thoughts” between citizens, and the “promotion of union among them, whereby” public officials can be embarrassed into “more honourable and just modes of conducting affairs”Footnote ⁴⁶ – public funding of local journalism and public media could vitally advance that goal, particularly given the economic headwinds now facing the press.

First Amendment doctrine that embraced a most-favored-nation theory of the press might permit, or even require, market-structuring laws – such as antitrust, bankruptcy, or property rules – that facilitate and advance a flourishing press able to accomplish its constitutional purposes.Footnote ⁴⁷ For example, press law might permit laws that require social media to pay news outlets. Or it might allow or require copyright rules that promote journalism, for example, by requiring artificial intelligence (AI) companies that rely on large language models trained on press creations to contribute to the support of local or public media as much or more than they are required to compensate non-press authors of training data.

***

The First Amendment’s Press Clause provides explicit constitutional protection for the press as a fundamental democracy-enabling institution, just as the religion clauses distinctively protect religion as a central institutional protector of self-determination in the realm of faith and conscience. Given the current Court’s recent embrace of religious exceptionalism – providing religious actors most-favored-nation status – there should be a parallel recognition of press exceptionalism. The text and history of the First Amendment, along with the structural role of the press in our constitutional system, support recognizing a special status for the press that is tailored to its democratic purpose. This press exceptionalism should permit, and may require, government action to promote a free and vibrant press that can foster the forms of discourse, shared knowledge, shared concern, and shared focus necessary for democratic self-governance.

The Constitution’s free expression clauses are famously bare-bones: “Congress shall make no law … abridging the freedom of speech, or of the press.”Footnote ¹ The historical drafting record is likewise thin – the constitutional framers spent little time debating press protections at the Constitutional Convention.Footnote ² Yet post-ratification, the paths of these two provisions have diverged. The Supreme Court has devoted substantial attention to the Speech Clause, interpreting it broadly to cover an array of activities. In contrast, it has largely ignored the Press Clause, reading it mostly as ancillary to the ever-expanding set of speech protections.Footnote ³ The Press Clause has little independent meaning today.Footnote ⁴

Yet imagine a different text, with a different drafting history. What if the Constitution provided that “the liberty of the press shall forever remain inviolate,”Footnote ⁵ or that freedom of the press is “one of the invaluable rights of man?”Footnote ⁶ What if the Press Clause were a stand-alone provision, or the discussion of the meaning and scope of speech and press provisions had figured largely into the constitutional drafting debates?Footnote ⁷ Would protections for the press look different today?

Such language and history do exist – in state constitutions. All fifty states have adopted constitutions that explicitly shield freedom of speech and the press.Footnote ⁸ And nearly all of them contain language that is substantially different from the language of the First Amendment.Footnote ⁹ These state constitutions contain fifty separate speech and press provisions, each with different drafting processes and different histories of judicial interpretation.Footnote ¹⁰ Moreover, state constitutions contain myriad additional constitutional provisions – many without federal analogs – that both privilege and protect the press.Footnote ¹¹

Since the 1970s, members of the press have advocated for increased constitutional protections under the First Amendment.Footnote ¹² Some of these efforts have been successful. Yet these rights have generally been extended to the public as a whole.Footnote ¹³ The Supreme Court has mostly rejected calls to read the First Amendment to extend exclusive constitutional protections for the press.Footnote ¹⁴ This has left the press without particularized constitutional shields for many newsgathering activities, like accessing prisons or shielding confidential sources.Footnote ¹⁵

There are reasons to revisit these precedents today. The economic and political power of the institutional media has diminished in recent years, with local press institutions disappearing at alarming rates.Footnote ¹⁶ At the same time, attacks on journalists have increased.Footnote ¹⁷ In response to these growing pressures on the institutional media, scholars have turned their attention back to the First Amendment, asking, for example, whether the Press Clause could be “revitalized” or “awakened” to offer a more abundant set of rights and privileges for the press.Footnote ¹⁸

Earlier press law scholarship of this type focused on the meaning and scope of the Press Clause, including whether its drafters intended only to protect against prior restraints.Footnote ¹⁹ Professor David Anderson’s landmark article from 1983 argued that the drafters intended the First Amendment to sweep more broadly. He contended that they envisioned constitutional press protections to operate as a structural check against governmental abuse.Footnote ²⁰ More recent Press Clause scholarship has built upon this work, taking up related questions, such as how to define “the press” for constitutional purposesFootnote ²¹ and how the Supreme Court’s perceptions of the press have changed over time.Footnote ²²

This work is rich and thoughtful, yet it focuses almost exclusively on the federal Constitution.Footnote ²³ This chapter, in contrast, turns attention to the “other” press clauses, along with state constitutional speech protections and various other state constitutional provisions implicating the press. It asks how these various state-level protections might be utilized to protect the institutional press in new or better ways.Footnote ²⁴ And it asks how the lessons of these state experiences might be applied back to the federal context.Footnote ²⁵ In this way, the chapter plugs into two separate strands of scholarship.

The first is the small but expanding literature exploring the scope and meaning of the federal Press Clause.Footnote ²⁶ The second is a larger body of work examining how state constitutional liberties offer expanded rights protection beyond what the federal Constitution guarantees.Footnote ²⁷ This movement to expand state constitutional rights is often described as “new judicial federalism.” Supreme Court Justice William Brennan is widely credited as its founder, at least in the movement’s modern form.Footnote ²⁸ In his landmark 1977 Harvard Law Review article, State Constitutions and the Protection of Individual Rights, Brennan warned that the steady expansion of federal individual liberties’ protections during the Warren Court had come to an end.Footnote ²⁹ In the face of this federal rights retrenchment, he argued, state courts must take up the mantle of the progressive cause and construe state constitutional rights provisions to fill in these federal constitutional gaps. He urged state supreme courts to break with federal judges, even when interpreting analogous state constitutional provisions.Footnote ³⁰

Many did so. If the promise of state constitutional rights protection was overlooked at the time of Brennan’s call to action, that is no longer true today. State courts have spent decades untangling the relationship between state and federal constitutional rights provisions.Footnote ³¹ They have developed a rich body of case law cataloging when and how state courts have interpreted state constitutional individual liberties provisions more expansively than their federal counterparts, as well as when they should.Footnote ³² Scholars have also developed typologies of different methodological approaches to state constitutional rights interpretation.Footnote ³³ A wide variety of methods have been adopted, from “lockstep” interpretations adopting federal court constructions wholesale to “primacy” approaches that emphasize independent state construction and give little weight to federal interpretations of equivalent provisions.Footnote ³⁴

This chapter mostly sidesteps these methodological debates.Footnote ³⁵ It focuses instead on the specific context of state constitutional press protections.Footnote ³⁶ Much of the “new judicial federalism” scholarship is subject specific. The courts’ early jurisprudence in this area largely focused on the scope of criminal law protections, for example.Footnote ³⁷ The Warren Court steadily expanded constitutional protections for criminal defendants, and in the face of the U.S. Supreme Court’s retreat from this project, state supreme court judges asked whether state constitutions might fill the gap.Footnote ³⁸ The legal scholarship followed suit.Footnote ³⁹

Since then, different substantive state constitutional provisions have captured judicial and scholarly attention at different moments. Today, for example, many advocates and scholars have turned to state constitutional privacy provisions as a potential source of reproductive rights protection in the wake of the Supreme Court’s elimination of federal abortion protections in Dobbs v. Jackson Women’s Health Organization.Footnote ⁴⁰ And in the face of the growing climate crisis, advocates have looked to state constitutional provisions addressing public health rights or the right to a healthy environment as a promising source of new legal protection.Footnote ⁴¹ As the Supreme Court moves further to the right,Footnote ⁴² progressive scholars and advocates will most likely continue to look to state constitutions as an alternative source of rights protection.Footnote ⁴³

In the decades since Brennan’s article, scholars and judges have also looked to state constitutional speech and press provisions.Footnote ⁴⁴ They have asked whether these protections sweep more broadly than the First Amendment Speech and Press Clauses, as well as whether they should.Footnote ⁴⁵ State courts have also explored the meaning of state free expression protections when construing state constitutional speech and press provisions.Footnote ⁴⁶ But more could be done. Press advocates haven’t always utilized these press and other state constitutional provisions effectively.Footnote ⁴⁷ And state courts have often construed state constitutional free expression provisions in lockstep with the First Amendment, despite significant textual and historical distinctions.Footnote ⁴⁸

Further, legal scholars have largely overlooked state constitutional protections for the press. Some have compared the development of free expression rights in the state versus federal constitutional contexts for specific states.Footnote ⁴⁹ Yet the scholarship examining state constitutional protections for the press is more limited.Footnote ⁵⁰ This is true even though these state constitutional press protections offer crucial benefits. State constitutions can provide protection where the U.S. Constitution has failed. Many state constitutional press and speech provisions already sweep more broadly than the First Amendment under current state precedent. And many more could be reasonably construed this way.Footnote ⁵¹ Moreover, state constitutions are more easily amended in response to new or changing threats to the press.Footnote ⁵²

The lessons of state constitutional law can also be useful for advocates of expanded federal press protections. Many of the policy arguments advanced by the U.S. Supreme Court in the course of rejecting particularized rights for the press can be challenged by the experience of the states. The state constitutional experience offers alternative law and policy choices, distinct from the path the U.S. Supreme Court has chosen under the First Amendment. Mining these state law histories can be helpful for refuting the Court’s policy-oriented claims and imagining alternative futures for federal constitutional press protections.Footnote ⁵³

This chapter proceeds in two sections. Section 13.1 outlines the text, drafting history, and interpretive precedents of federal and state press and speech clause protections, focusing attention where state courts have interpreted state constitutional press protections to sweep more broadly than the First Amendment. Section 13.2 examines the future of federal and state press and speech clauses. It identifies state constitutional provisions and precedents that could be seized upon by advocates to expand protections for the press. And it provides examples of ways that the experiences of the states can be used to bolster arguments for broader press protections under federal law.

13.1 Constitutional Protections for the Press

Federal and state constitutions articulate very different textual protections for the press. This is true in terms of both press and speech clauses and more ancillary provisions like rights of information access. These state constitutions also have vastly different histories of drafting and judicial interpretation. This part maps out these distinctions across the federal and state contexts, focusing attention on the substantive areas where the states have extended press protections beyond what the First Amendment allows.

13.2 The Future of Constitutional Press Protections

State constitutions already operate as a source of independent protection for the press. Press advocates could do more to capitalize on these constitutional provisions. They could utilize state constitutions to extend new or expanded protections for the press. They could also mine the experience of the states and the history of state constitutional experimentation to bolster arguments for expanded federal press protections.

13.3 Conclusion

The Roberts Court has curtailed the scope of various constitutional rights provisions in recent years. In response, scholars and activists have increasingly looked to state constitutions as an alternative source of protection. Across substantive areas like abortion and climate change, state courts have interpreted state constitutions to provide more expansive rights than the U.S. Constitution.Footnote ²²⁰ This chapter argues that members of the press should look to state constitutions as an alternative source of legal protection as well.

The U.S. Supreme Court has consistently declined to interpret the First Amendment in ways that extend special privileges to the press. But state constitutions can be used to fill in these federal constitutional gaps, operating as a powerful and independent source of protection for the media. Some states have already done so. They have extended greater protection under the state constitution when it comes to prohibitions against prior restraint, reporter’s privilege shields, rights of information access, and protections against defamation liability.Footnote ²²¹ These decisions are rooted in textual, structural, and historical distinctions between the federal and state constitutions, as well as differences in the federal and state political experiences.Footnote ²²²

But more can be done. Press advocates could better capitalize on these distinctions going forward. They could look to the comparatively stronger texts of state constitutions to support stronger press rights. They could draw upon structural distinctions in state constitutions to avoid interpreting state-level press clauses to be wholly duplicative of state speech clauses. They could amend state constitutions in response to new and growing threats to the press. And they could hold up the examples of state constitutional experimentation to help imagine a new and more expansive First Amendment. These fifty “other press clauses” could step in where the federal Press Clause has failed.

While attending a conference a few years ago, I had a private conversation about undercover investigations with the deputy general counsel of one of the nation’s leading newspapers. When I asked about what I perceived to be a significant decrease in news media conducting such investigations, the person responded something to the effect of, “Well, Food Lion pretty much ended all that.” The reference was to the U.S. Court of Appeals for the Fourth Circuit’s 1999 decision in Food Lion, Inc. v. Capital Cities/ABC, Inc.,Footnote ¹ one of the most important lower federal court cases shaping freedom of the press under the First Amendment in the past twenty-five years. The case involved a lawsuit by a large grocery store chain against ABC News and two of its producers, who had conducted an undercover investigation revealing that some stores’ employees engaged in unsanitary, and possibly unlawful, food handling practices.Footnote ² Although the ultimate outcome of the Fourth Circuit’s decision was on balance favorable to the press, it flatly rejected the news network’s contention that the First Amendment in any way limits tort claims against journalists engaged in this form of newsgathering.Footnote ³

This chapter discusses the continuing shadow of the Food Lion case, which looms over the efforts of journalists and, increasingly of other citizens, to engage in undercover investigations to discover and disseminate truthful information on matters of profound public concern. At a time when many impediments to freedom of the press have emerged, legal barriers to undercover investigations suppress a key newsgathering tool that was once an important part of the news media ecosystem. Section 14.1 provides a brief overview of undercover investigations in American journalism and then explores how the Food Lion investigation was developed internally and carried out by Susan Barnett and Lynne Dale, producers at ABC’s “Primetime Live” newsmagazine show.

In Section 14.2, the chapter describes the extensive litigation battle that followed ABC’s national broadcast of the Food Lion story and surveys the major legal objections to undercover investigations. It contends that the Food Lion decision created a significant degree of uncertainty about whether and when such investigations may be carried out without violating the law. The case never reached the U.S. Supreme Court, making it technically binding only in the five states governed by the Fourth Circuit. But because the Supreme Court has never taken up the specific First Amendment question implicated by the Food Lion case, the lower court’s decision continues to have widespread, arguably outsized, influence on the law governing undercover investigations.

Section 14.2 goes on to argue that Food Lion is responsible for a palpable chilling effect on those who might otherwise engage in undercover investigations, particularly those involving an investigator who secures employment with the target of an investigation. But Food Lion is more than just a legal precedent. Its deterrent effect also flows from the fact that it has shaped, and continues to shape, the journalism profession’s internal ethical debates about undercover investigations. Sections 14.1 and 14.2 are based in part on interviews conducted with Barnett and Dale, as well as with Nathan Siegel, one of ABC’s key legal counsel in the Food Lion case.Footnote ⁴

Section 14.3 proceeds to call for reconsideration of the Food Lion framework and articulation of a meaningful constitutional protection for some aspects of newsgathering, which are long overdue. It lays out a tentative framework for a limited First Amendment privilege to protect undercover investigators from both targeted and generally applicable criminal and civil laws, and it addresses the limitations on and concerns with recognition of such a privilege.

14.1 The News Media, Undercover Investigations, and Free Speech

14.2 The Food Lion Litigation and Potential Legal Barriers to Undercover Investigations

As valuable as undercover investigations can be to promoting democracy, transparency, and public discourse, there have long been objections to the secretive tactics necessary to carry them out. Targets of such investigations have been predictably upset when a journalist exposes their illegal or otherwise unsavory conduct to public scrutiny. During the Progressive Era, critics would describe intrepid women reporters with the pejorative label “girl stunt journalists” in order to convey a lack of journalistic legitimacy and to place them below their male peers on some sort of professional hierarchy.Footnote ⁵⁶ This suggested that this type of important journalistic work was sensationalist and unprofessional. Perhaps not surprisingly, current critics of undercover investigations attack investigators with comparable epithets.Footnote ⁵⁷ But at least in the earlier years, criticisms of such investigations were confined to simple rhetorical attempts to undermine journalists’ professional credibility. Beginning sometime in the 1990s, however, investigative targets began turning to the courts in an effort to legally punish and chill undercover investigations.Footnote ⁵⁸

14.3 Reconsidering Food Lion

14.4 Conclusion

For a relatively narrow, mostly pro-press freedom opinion, the Fourth Circuit’s decision in Food Lion has had a continuing and long-lasting deterrent effect on undercover investigations, both as a legal precedent and as an influence on journalists’ ethical debates about such tactics. Its invocation of the relatively obscure common law duty of loyalty in some ways supersedes the importance of the law of undercover investigations that has developed since it was decided. Repudiating Food Lion and recognizing a limited form of newsgatherer’s privilege for undercover investigations would be a useful reform that could restore an important journalistic tradition that has frequently led to the discovery and publication of information critical to public discourse and, in turn, to our democracy. At a time when many external and internal impediments already threaten the future of press freedom, perhaps taking this narrow but important step toward expanding the ability to engage in newsgathering could move the law in a promising direction.

One of the Supreme Court’s most significant First Amendment rulings may be in peril. For the past sixty years, the landmark 1964 decision of New York Times Co. v. Sullivan and the cases that followed have secured strong First Amendment protections for the press and others who speak on public affairs. Under these cases, public officials and public figures must show that the speaker acted with “actual malice” or “reckless disregard” of the truth in order to win a libel suit.Footnote ¹ Scholars and advocates have long celebrated Sullivan as one of the most important Supreme Court rulings for the protection of press freedom.

But in 2016, then-presidential candidate Donald Trump announced that he wanted to “open up” libel lawsFootnote ² to make it easier for him to sue his critics in the press.Footnote ³ Since then, attacks on Sullivan have taken on a new – and highly partisan – tenor. In 2017, former Republican vice-presidential candidate Sarah Palin brought a high-profile defamation case against The New York Times in which she called Sullivan “obsolete in the modern speech landscape.”Footnote ⁴ Soon after, two Supreme Court justices, Clarence Thomas and Neil Gorsuch, urged the Court to reconsider Sullivan and its progeny.Footnote ⁵ Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit agreed, penning a sharply worded dissent that called for the Court to overrule Sullivan, declaring that the press is “bias[ed] against the Republican Party” and stating that The New York Times and The Washington Post “are virtually Democratic Party broadsheets.”Footnote ⁶ A number of other litigants have also asked the Court to take a new look at Sullivan’s holdings, arguing that the ruling insufficiently protects the interest in personal reputation and awards the purportedly biased, liberal press with an unwarranted “subsidy” for untruthful publications.Footnote ⁷

Any reconsideration of Sullivan and its legacy, however, must not be done in a historical vacuum. The story of Sullivan is a powerful illustration of the unique functions the press fulfills in American democracy and the importance of Sullivan’s protections of those functions. The history of Sullivan demonstrates how, when provided with sufficient constitutional protections, the press embodies key democracy-enhancing roles, such as reporting on public affairs, transmitting newsworthy information to the public, monitoring the conduct of public officials, and holding officials accountable to the citizenry. Arising out of the Civil Rights Movement, the history of Sullivan also shows us how a free press can serve as a voice for underrepresented groups and shine light on matters of importance that might otherwise go unseen.

Yet, as this chapter demonstrates, this history also lays bare the high stakes of losing the First Amendment protections recognized in Sullivan. Prior to the Court’s ruling in Sullivan, government officials and other public figures routinely weaponized libel laws to suppress their critics, particularly members of the press. Journalists were arrested and assaulted. Major newspapers pulled their reporters out of the sites of ongoing public battles, leaving the public in the dark about significant newsworthy events. Libel law, to use Justice William Brennan’s words in Sullivan, had a silencing, “chilling” effect on press.Footnote ⁸ This chapter uses history to explain how and why Sullivan nearly eliminated those overwhelming threats to the press. If New York Times Co. v. Sullivan and related cases are overruled, libel suits could again become weapons of blatant political suppression.

15.1 Libel and the Press

Libel is a civil cause of action that protects personal reputation against false and defamatory statements. A defamatory statement is one that seriously lowers a person’s reputation; it exposes a person “to hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace [and] deprives one of their confidence and friendly intercourse in society.”Footnote ⁹ It “injures [a person] in his profession or trade, [and] causes him to be shunned or avoided by his neighbors.”Footnote ¹⁰

Before 1964, a person who sued for libel didn’t have to prove that the statement in question was false; rather, falsity was presumed. The plaintiff didn’t have to show actual injury to their reputation, only that the statement had the potential to harm their reputation. Libel was judged under the rule of strict liability, meaning that a publisher was responsible for its statements regardless of the publisher’s intent or state of mind at the time of publishing. The only ways a publisher could defend itself were by proving that the statement fell into one of a few narrow categories of statements that were “privileged,” legally justified or excused, or, more commonly, by proving the truth of the statement “in all its particulars.”Footnote ¹¹ Truth was a complete defense to libel, but as a practical matter, proving the truth of a statement “in all its particulars” was difficult even if the statement was true. Prior to 1964, the Supreme Court had said repeatedly that defamation law did not implicate the First Amendment. Defamatory speech had no redeeming social value, the Court said, and its regulation could be left wholly to the states.Footnote ¹²

Under these rules, publishing criticism – even truthful criticism – of public officials was a dangerous undertaking for a newspaper. Public officials routinely saddled their critics in the press with libel claims (claims that would today be considered meritless), often recovering considerable damage awards. Libel lawsuits against newspapers were a regular feature of American politics prior to the 1960s. Political officials and other powerful figures frequently harassed and intimidated their critics in the press through retaliatory libel suits. At the turn of the century, for example, railroad magnate James Fisk sued The Springfield Republican for $100,000, followed by lawsuits against two other newspapers for the same sum and a third claiming $1 million in damages. In 1916, Henry Ford brought a spurious lawsuit against the Chicago Tribune for calling him an “ignorant idealist” and an “anarchist.”Footnote ¹³ Presidents even sued the press. In 1916, former President Theodore Roosevelt brought claims against a Michigan newspaper that accused him of being a drunk.Footnote ¹⁴ Libel lawsuits sent the muckraking newspaper The New York World, published by Joseph Pulitzer, into bankruptcy in the early twentieth century. Fear of devastating libel suits led editors to routinely hold back critical commentary about public officials. Under the law at the time, a newspaper could only be sure of escaping a libel suit when the facts were entirely confirmable “in every detail.”Footnote ¹⁵

Despite strict libel laws and the risk of being sued, some major press outlets, such as The New York Times, did find ways to publish. The Times used specialized lawyers and conducted extensive fact-checking and vetting procedures, reviewing all copy for possible libel.Footnote ¹⁶ As a result of its aggressive tactics and well-trained lawyers, The Times rarely paid out judgments in libel cases. But few newspapers had the financial and legal muscle of The Times. And libel remained a formidable latent threat, even for The Times.

As I describe in my book Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan, libel suits almost destroyed The Times in the 1960s, when officials in the South figured out how to weaponize libel law to attack newspapers that criticized segregation and exposed official violence against civil rights protesters. This “libel attack” on the press, which produced a series of lawsuits, including the Sullivan case, illustrated how libel law could be exploited by vengeful public officials. It demonstrated to the Supreme Court, and the public more generally, how existing libel laws were anathema to the robust public discourse on public affairs that is the “central meaning” of the First Amendment.

15.2 The Attack on the Northern Press

The South’s libel attack on the northern press was a blatant attempt to halt media criticism of segregation and press coverage of the Civil Rights Movement more generally. The libel attack grew out of the southern campaign of “massive resistance,” its defiance of the Supreme Court’s 1954 decision in Brown v. Board of Education.Footnote ¹⁷ Segregationists feared the power of the press, and its power to sway public opinion toward integration and civil rights, with good reason. Media coverage of civil rights protests, and the violent backlash those protests generated, would prove critically important in building national support for civil rights that would lead to the Civil Rights Act of 1964. Images of civil rights activists being attacked by police and pictures of protesters being ejected from segregated lunch counters would illuminate the cruelties of the South’s racial system and the courage of those who defied it.Footnote ¹⁸

The catalyst to the libel suit at issue in Sullivan was the lunch counter sit-in movement that took off in the South in 1960. When sit-in protesters in Montgomery, Alabama, were assaulted by white mobs, Public Affairs Commissioner L. B. Sullivan, who supervised the police, did nothing to stop the attack. Shortly after, a civil rights organization called the Committee to Defend Martin Luther King and the Struggle for Freedom in the South published a full-page fundraising advertisement in The Times, titled Heed Their Rising Voices, which accused officials in Montgomery and other southern cities of inflicting violence on civil rights protesters. The ad was endorsed by sixty-four eminent figures in the arts and politics, whose names appeared on the ad. Also listed at the bottom of the ad were the names of twenty ministers who were leaders of King’s civil rights organization, the Southern Christian Leadership Conference. In reality, the ministers hadn’t endorsed the ad; their names were added at the last minute by the Committee to Defend Martin Luther King.Footnote ¹⁹ This advertisement would form the basis of the Sullivan case.

The ad, it turned out, contained minor errors of fact. For example, it incorrectly reported the names of the songs protesters had sung on the steps of the Capitol in Montgomery. The most serious error was the claim that officials in Montgomery had padlocked the dining hall of the Alabama State College to starve and punish the protesters, which wasn’t true.Footnote ²⁰ The Times hadn’t fact-checked the ad before running it and thus had failed to adhere to its own well-established policy of vetting all copy for accuracy. Although Sullivan wasn’t mentioned by name in the ad, he claimed that he’d been defamed by statements in the ad implicating Montgomery “authorities” and “police” in violence against civil rights protesters.Footnote ²¹

The essence of the charges, however, was true: Sullivan had been complicit in violence, although perhaps not in all the specific acts described in the ad.Footnote ²² But Sullivan’s reputation wasn’t harmed. At the time, being known for committing violence against civil rights protesters would have only enhanced his reputation among whites in Montgomery. Sullivan and three Montgomery commissioners sued The New York Times and four ministers whose names appeared on the ad for $500,000 each.Footnote ²³ Shortly after, the governor of Alabama, John Patterson, also sued The Times, the ministers, and King for $1 million, claiming he’d been defamed by the ad’s references to Alabama “authorities.”Footnote ²⁴

Authorities in Birmingham likewise wasted no time in bringing libel suits against The Times over its news reporting on racial violence in the city – violence that had been abetted by local officials, including Bull Connor, Birmingham’s notorious commissioner of public safety.Footnote ²⁵ These seven additional libel suits added $3.5 million in potential damages to The Times’ burden.Footnote ²⁶ A Times reporter was even brought up on charges of criminal libel for his reporting on Birmingham, which could have led to six months’ imprisonment.Footnote ²⁷ This use of libel law to enact a coordinated, state-sponsored attack on a disfavored newspaper was unprecedented in the history of the press.Footnote ²⁸

The Alabama libel suits presented an existential threat to The Times, which operated on a low profit margin and was barely breaking even in 1960.Footnote ²⁹ The libel suits threatened to bankrupt The New York Times.Footnote ³⁰ In response, The Times’ lawyers made the historic decision of ordering all personnel to stay out of Alabama to avoid further libel trouble.Footnote ³¹ Because of the libel suits, the nation’s newspaper of record didn’t have a single reporter in one of the major sites of civil rights activity during the critical years of the Civil Rights Movement. The libel suits were having a chilling effect on the press.

In November 1960, an all-white jury in Montgomery concluded that the statements in the ad could be understood as defaming Sullivan and awarded him $500,000.Footnote ³² At the time, it was the largest-ever libel verdict in the country.Footnote ³³ The Chicago Tribune noted that “even the most intrepid publisher must be intimidated into silence” by this use of libel law.Footnote ³⁴ These successful libel suits, moreover, spurred a wave of copycat lawsuits. By 1964, southern officials had brought seventeen libel suits against northern media outlets seeking damage awards of more than $288 million.Footnote ³⁵

Notable examples include a lawsuit brought by arch-segregationist Edwin A. Walker. Walker was a retired Army general who led a segregationist mob that assaulted reporters and federal officers to protest the admission of James Meredith, a Black student, to the University of Mississippi. Walker sued the Associated Press and ten other media outlets for $33 million in damages over accurate accounts that he had encouraged the rioting. The director of the Mississippi Highway Patrol, T. B. Birdsong, then sued The Saturday Evening Post over an article titled What’s Next in Mississippi, which imputed “official misconduct” to patrolmen during the Ole Miss riots, alleging that state troopers failed to help federal marshals rein in the mob and that patrolmen stood by while a white vigilante posse beat up a news photographer. Birdsong sought $276 million in damages – $1 million for himself and $1 million for each of the state’s 275 highway patrolmen. The sheriff of Etowah County, Alabama, sued the publisher of the Ladies’ Home Journal, Curtis Publishing, for $3 million for an article that accused the sheriff and his deputies of brutality in racial demonstrations. Tom King, a candidate for mayor of Birmingham, threatened a libel suit against The Saturday Evening Post for describing Birmingham as the most “backwards” city in America on race.Footnote ³⁶

Many “publications are now under the shadow of potentially expensive [libel] actions,” noted the Columbia Journalism Review in 1963. “The characteristic actions of the 1960s appear to be suits growing out of local or regional retaliation for reporting or comment by a national news organization,” it observed. “Large awards and wide publicity seem to be encouraging more and more of the offended to sue.”Footnote ³⁷ This was putting it rather mildly.

15.3 Appeal to the U.S. Supreme Court

After losing their appeal before the Alabama Supreme Court in 1962, The Times and the ministers appealed separately to the U.S. Supreme Court. The ministers’ appeal focused on segregation in the trial proceedings and the racial animus that had given rise to the libel prosecutions.Footnote ³⁸ The Times, represented by eminent Columbia University Professor Herbert Wechsler, focused on libel law’s threat to freedom of the press and on the freedom of citizens to criticize their government more generally.

To avoid confrontation with the Supreme Court’s well-established position on the constitutionally unprotected status of libel and the thorny issue of how reputation and free speech should be balanced, Wechsler brilliantly shifted the focus of the appeal from the right to protect reputation to the right of citizens to criticize the government. Wechsler argued that permitting Sullivan to recover on the theory that he was defamed by criticism of the “police” in Montgomery was akin to the defunct crime of seditious libel. That crime, under which a government may punish its critics, had long been assumed to be unconstitutional.Footnote ³⁹ “The decision of the Supreme Court of Alabama gives a scope and application to the law of libel so restrictive of the right to protest and to criticize official conduct that it abridges the freedom of the press, as that freedom has been defined by the decisions of the Court,” Wechsler’s brief argued.Footnote ⁴⁰ “It transforms the action for defamation from a method of protecting private reputation to a device for insulating government against attack. If the judgment stands, its impact will be grave – not only upon the press but also upon those whose welfare may depend on the ability and willingness of publications to give voice to grievances against the agencies of governmental power.”Footnote ⁴¹

The brief continued, “We submit that such a rule of liability cannot be reconciled with this Court’s rulings on the scope of freedom of the press safeguarded by the Constitution. Those rulings start with the assumption that one of the prime objectives of the First Amendment is to protect the right to criticize ‘all public institutions.’ … We do not see how … criticism of an elected, public official may consistently be punished as a libel on the ground that it diminishes his reputation.”Footnote ⁴² Criticism of public officials, Wechsler argued, was protected absolutely by the First Amendment.Footnote ⁴³

In March 1964, the Court threw out Sullivan’s verdict and placed constitutional limits on libel laws in the form of the “actual malice” rule. A public official could not recover damages for libel unless they could show that the statement was false and made with “actual malice” – knowledge that the statement was false, or “reckless disregard of whether it was false or not.”Footnote ⁴⁴ Brennan created the “actual malice” rule, in part, to address the extreme and unusual facts of the case. He knew that a negligence standard, a standard of carelessness – which is the usual fault standard in personal injury cases and might have been the obvious standard to apply – wouldn’t have protected The Times, since it admitted that it had been careless in publishing the ad without checking the facts. Brennan, the consummate negotiator, also created actual malice as a compromise to please different blocs of justices on the Court, including the three “absolutist” justices, Black, Goldberg, and Douglas, who would have taken Wechsler’s extreme, absolutist position, and those justices who preferred less sweeping, balancing approaches.Footnote ⁴⁵

Brennan saw another reason for adopting actual malice. Inspired by Wechsler’s analysis, Brennan offered the most extensive reading of the meaning of the First Amendment and its relationship to democracy in Supreme Court history to that time. Adopting Wechsler’s views of freedom of expression, Brennan wrote that the ability of citizens to engage in debate of public issues, debate that may include caustic and sharp attacks on government and public officials, was the “central meaning” of the First Amendment.Footnote ⁴⁶ The essence of the First Amendment is the right of citizens to engage in “uninhibited, robust, and wide open” public discourse, which was the essence of self-governance.Footnote ⁴⁷ Libel law’s rules of strict liability and the requirement that the defendant prove the truth had a “chilling effect” on public debate by producing self-censorship, Brennan wrote. Presented with rules that were overly strict, speakers would “steer … wide of the unlawful zone.”Footnote ⁴⁸

Even a negligence standard, Brennan believed, didn’t provide adequate “breathing room” for speech, because “erroneous statement is inevitable in free debate.”Footnote ⁴⁹ The Court adopted the actual malice standard as a way of providing First Amendment protection for speakers who criticized public officials, while at the same time allowing protection for reputation.Footnote ⁵⁰ Brennan recognized that under the actual malice rule, harms caused by some false statements that were not made with reckless disregard for the truth would go unremedied. But this was the price of freedom of expression, he wrote. The urgent situation in Alabama had called on the Court to take a fresh look at an entire area of law and to reexamine the principles and values of the First Amendment.

15.4 Freeing the Press

The Supreme Court saved the nation’s newspaper of record from ruin. The Sullivan decision not only reversed L. B. Sullivan’s judgment but turned back the segregationists’ “libel attack.” It freed the press to report fully and freely on the Civil Rights Movement, coverage that could have been undermined if the next wave of libel suits had gone through the courts without Sullivan’s protections.

After the Court handed down its opinion in Sullivan, media coverage of the Civil Rights Movement was indeed “robust and wide-open.”Footnote ⁵¹ Reporting on protests in Selma, Alabama, the following year helped facilitate the national consensus on civil rights that led to the passage of the Voting Rights Act of 1965. Scholars agree that the success of the Civil Rights Movement can be attributed in large part to direct action protests and media coverage of those protests. Sullivan was one of the most important Supreme Court decisions facilitating the advance of the Civil Rights Movement.Footnote ⁵²

More broadly, Sullivan facilitated a sea change in journalism, permitting the press to fulfill its constitutional function of reporting on public affairs without fear of devastating libel judgments. Prior to the 1960s, the press had relied on the assertions of the government on critical issues such as national security. But with the Vietnam War, journalists began publishing unauthorized versions of the facts. Such reporting, and investigative journalism more generally, would not have been possible without Sullivan. The protections of Sullivan facilitated the rise of investigative reporting as a genre. “The allowance of room for honest mistakes of fact encouraged the press to challenge official truth on two subjects so hidden by government secrecy, Vietnam and Watergate, that no unauthorized story could ever have been ‘absolutely confirmable,’” in the words of journalist Anthony Lewis.Footnote ⁵³ It was Sullivan that permitted the free flow of information “through the press so that the public would be informed about the government and its actions.”Footnote ⁵⁴

If today’s opponents of Sullivan and related cases succeed, it would become substantially riskier for speakers, including the press, to comment on public affairs. Without the protections of Sullivan, the press would be greatly limited in its ability to engage in its “watchdog” function, monitoring the conduct of public officials and holding them accountable to their constituents. A rollback of Sullivan, moreover, could herald a return to the “libel warfare” that existed before 1964. As the Sullivan story suggests, fewer protections for speakers in libel law would undermine the ability of the press and citizens to engage in the “uninhibited, robust, and wide-open” discourse that is central to public deliberation in a democratic society. The Supreme Court in 1964, and the American public more broadly, saw how libel law could be used to persecute critics of the status quo speaking out on behalf of social justice – persecution that could easily occur today in the absence of Sullivan’s protections. Sullivan changed the course of history, and in our contentious times, its protections matter more than ever.

In the popular imagination, a right to information is foundational. Democracy depends on an informed electorate, and the press, as a representative of and an intermediary for the public, should be able to access the information it needs to tell the rest of us what our “[g]overnment is up to.”Footnote ¹ Yet a right of the public or the press to access government information is not enshrined in our Constitution. While the U.S. Supreme Court has interpreted the First Amendment to guarantee some limited access to judicial proceedings, it has never expanded this right to include federal agency records.Footnote ² For two hundred years of our nation’s history, in fact, nothing did.

That all changed in 1966 when Congress enacted the Freedom of Information Act (FOIA), which is now the signature government transparency law in the United States.Footnote ³ The press, specifically, was at the forefront of the decade-long advocacy struggle that led to the passage of FOIA. Journalists and their associations provided Congress with significant input during the drafting of the legislation.Footnote ⁴ In congressional hearings, moreover, elected representatives repeatedly articulated their vision that the press would vigorously use FOIA to the benefit of the public.Footnote ⁵ Still, Congress has never limited the use of the law to the press; indeed, FOIA provides that any person may request any agency record for any reason. The government must respond within twenty business days and provide the record unless it falls within one of nine enumerated exemptions.Footnote ⁶

Today, the federal government receives nearly a million FOIA requests a year.Footnote ⁷ Many celebrate this level of engagement as a sign of the law’s success. Yet the story looks different if we focus on the first-order FOIA users, namely the press (alongside watchdog groups, nonprofits, and community organizations), who are using the law to inform the broader public. When asked about FOIA’s implementation, journalists, who now make less than 3 percent of all federal government-wide requests, may cite instances of success but generally give the law’s implementation a failing grade.Footnote ⁸

What, then, are the law’s problems from the perspective of the press? Journalist FOIA requesters (or would-be requesters) typically encounter two sets of problems: first, extreme agency delay in responding to requests and, second, the practical inability of most reporters to obtain recourse when the agency wrongly denies their requests.Footnote ⁹ These problems are both long-standing and well known, and Congress has tried to address them through amendments to the law that have, for example, created new carrots and sticks for agencies to meet deadlines or established mediation services for requesters who are dissatisfied with the agency response.Footnote ¹⁰ Yet if these incremental reforms have made a difference, it is only at the margin.

In this chapter, I will lay out a case for structural, not incremental, reforms that have the potential to “return” FOIA to the press. That is to say, Congress could structurally reshape FOIA to better serve its first-order users, the news media, for the benefit of the public. To be clear, I would never advocate limiting FOIA rights to the press or other oversight requesters. But if FOIA isn’t working for those requesters, then it is not doing the government transparency work we want it to do. Moreover, if it’s not working for the press, then it’s probably also not working well for others who are seeking government-held information.

16.1 Rethinking Information Delivery

Any conversation about journalists’ use of FOIA must start with a conversation about delay. Delay is one of the most intractable problems in FOIA administration. Even for those requests designated as being on the “simple” rather than the “complex” track, government-wide average processing times in the last reported year were more than twice the statutory deadline, and some agencies’ averages far exceeded that.Footnote ¹¹ A congressional report titled “FOIA is Broken” documented, among other problems, that “[m]any agency FOIA offices have abandoned the statutory requirement to make a determination within 20 working days.”Footnote ¹² A recent Government Accountability Office (GAO) report described backlogged requests as “a perennial problem for many federal agencies,” noting that in fiscal year 2022 the government-wide backlog of requests had reached more than 200,000.Footnote ¹³

Delay is also the news media’s biggest complaint and the reason journalists most often cite for not using the law more frequently. For example, ProPublica, an outlet that does use FOIA to great effect on a regular basis, nonetheless reports that delays “now routinely last longer than most journalists can wait – or so long that the information requested is no longer useful.”Footnote ¹⁴ In a series of interviews that I conducted with journalists, reporters uniformly cited delay as a top concern in using FOIA.Footnote ¹⁵

There is no doubt a variety of factors that contribute to delay. Agencies often cite resource constraints as a key factor, and there are many structural reasons why agencies are likely to have underfunded FOIA offices.Footnote ¹⁶ And, to be sure, there may be some level of agency recalcitrance in fulfilling particularly hot button requests.Footnote ¹⁷ But Congress’s recent attempts to address delay have missed the mark; reforms have adjusted fee structures, reporting requirements, and other incentives,Footnote ¹⁸ implying that recalcitrance is the primary reason for delay and that if we simply punish late responses or reward timely ones, agencies’ performance will improve.

Yet my research suggests there is another, much greater contributing factor that cannot be overlooked: the volume of non-oversight requesters. In the most comprehensive empirical account ever compiled, detailed in my book, Saving the Freedom of Information Act, I documented that the vast majority of requesters are not using FOIA for public oversight purposes but rather to advance private interests.Footnote ¹⁹ To be sure, these private interests are sometimes very compelling, and using FOIA for such purposes is neither illegitimate nor unlawful. Still, my look inside various FOIA offices revealed that FOIA processing is largely designed for and caters to whatever kind of request is dominating FOIA practice at a given agency. That is to say, agencies are essentially specializing in serving non-oversight requesters simply because they make up the vast majority of requesters.

To begin, some agencies, particularly law enforcement and benefits agencies, are inundated by first-person requests, or requests made by individuals who are seeking information or files about themselves. Take, for example, the Department of Homeland Security (DHS), which now receives more than half of the federal government’s total requests every year, outpacing every other agency by an order of magnitude and clocking in at more than 500,000 requests.Footnote ²⁰ Nearly all – more than 95 percent – of the requests DHS receives consist of noncitizens’ first-person requests for their own immigration records, typically because they are needed in conjunction with either a pending or threatened deportation case or an application for a new visa or for citizenship.Footnote ²¹ Similarly, at the Federal Bureau of Prisons (FBOP), more than half of all requests are first-person in nature, with most individuals in this category requesting their own medical records.Footnote ²² Many other agencies also experience high volumes of first-person requests, making first-person requests the most frequent type of FOIA request government wide.Footnote ²³

Agencies that receive high volumes of first-person requests have processes that specialize in serving those requesters. One top official explained that the DHS is, in his words, “trying to build a system that speaks to ninety percent of the requests that we get” and that the agency is “trying to drive down the response time for routine requests as far as possible.”Footnote ²⁴ At the Bureau of Prisons, a top FOIA official in charge of agency FOIA policy echoed this sentiment: “I put a lot of emphasis in processing simple requests quickly because it is one of the few things we have a lot of control [over] with our metrics.”Footnote ²⁵ This strategy is oftentimes very visible. At U.S. Citizenship and Immigration Services (USCIS) – the component agency of the DHS that receives the highest volume of requests – certain personnel do nothing but process noncitizens’ requests for immigration files. Those individuals, who make up the vast majority of the agency’s 250 or so FOIA processors, aren’t even trained or qualified to answer any other types of requests, such as ones from reporters.Footnote ²⁶

Designing FOIA operations to best serve the largest FOIA constituency at a given agency is an entirely rational strategy. Agencies’ FOIA performances are judged by the metrics they have to report, such as aggregate statistics on the number of requests received and processed, average processing times, and types of responses.Footnote ²⁷ The best way to improve performance is naturally to focus on the bulk of routine and predictable requests, not on the comparatively tiny fraction of requests from journalists, which are often more topical and unique.

This phenomenon is not limited to agencies with high volumes of first-person requests. At other agencies, typically large regulatory agencies like the Securities and Exchange Commission (SEC), the Environmental Protection Agency (EPA), or the Food and Drug Administration (FDA), FOIA offices spend the vast majority of their time processing requests from commercial requesters seeking routine, discrete records such as inspection reports, financial filings, or government contract information.Footnote ²⁸ To compound this dynamic, at many of these agencies with high-volume commercial requesting, a significant subset of those commercial requesters are businesses I classify as information resellers, which are businesses that request a high volume of records from the federal government and resell them, at a considerable profit, to private parties.Footnote ²⁹ FOIA offices with these kinds of commercial requesters may have impressive performance statistics, particularly regarding the speed of their responses, but only because each request requires looking up a single record.Footnote ³⁰ When those comprise 75, 85, or 95 percent of the requests received, agencies have little incentive to do anything but prioritize these requests and hire and train processors who specialize in addressing them.

In short, the sheer volume of non-oversight requesters necessarily affects journalists’ and watchdog groups’ requests in a negative way. These requesters not only create huge numbers of FOIA requests that strain agency resources but also distort the priorities of agency FOIA offices to incentivize catering to these much more frequent uses. As a consequence, the agencies lose, or fail to attain, the knowledge and skills necessary to serve the news media. That is to say, journalists’ requests are likely to face worse outcomes in FOIA processing simply because they do not fit neatly into the process the agency has designed for more routine and predictable information requests.

The unfortunate reality, though, is that FOIA serves these other interests poorly, too. In the cases of individuals with a pending law enforcement proceeding or benefits application, FOIA may not provide the records they need in time to help them in their underlying case.Footnote ³¹ For businesses that want a database of all facilities inspection reports, building such a repository by requesting those records one at a time through individualized letter writing is highly inefficient.Footnote ³² These requesters are only turning to FOIA because there is no better alternative.

To return FOIA to the press, Congress could and should mandate that agencies consider alternative information delivery mechanisms for sets of records routinely needed by the public. While no one should be denied the option to avail themselves of FOIA, they wouldn’t have to rely on FOIA if they had better alternatives, such as public access databases with affirmatively available records or individual portals for personal information or discovery in administrative proceedings. Examining the constituencies currently served by FOIA reveals the possibilities of serving those constituencies better outside of the FOIA system, saving FOIA for the first-order uses imagined.

16.2 Rethinking Oversight

The second big structural problem for journalists seeking public information is that agencies’ FOIA violations are relatively insulated from independent review or practical consequence. Put differently, the right to file a federal lawsuit to challenge agency denials under the Act is simply inadequate as an oversight mechanism.

When FOIA was originally enacted in 1966, Congress understood the importance of independent oversight of agency decisions to withhold records, and it focused on judicial review as the remedy for that concern. As a result, unlike in other administrative law contexts, Congress provided that courts should review agency decisions to withhold records de novo, without any deference to the agency’s position.Footnote ³³ And when the Supreme Court ruled that federal courts’ powers to review were limited in some areas of national security in EPA v. Mink, Congress legislatively overruled the court and reinstated true de novo review in the statute.Footnote ³⁴ In other words, Congress doubled down on the idea that the best protection against an executive agency’s wrongful decision to withhold records is a full, independent adjudication by the courts.

The idea of de novo judicial review sounds good on paper. But in practice, judicial review has proven woefully inadequate. To begin with, getting into court is quite difficult. Hiring a lawyer is expensive, and litigation is resource-intensive. Most oversight requesters, including reporters and news media organizations, cannot afford legal fights over records. And the changing nature of news media means there are fewer and fewer legacy outlets that would potentially have the kind of resources required to litigate denials on behalf of their reporters. One study by James Hamilton documented that FOIA use generally is declining among smaller local news outlets.Footnote ³⁵

The fact that few reporters can go to court to challenge an agency’s failure to comply with the law is particularly troubling because reporters who have brought FOIA suits have observed the power of independent review. In a series of interviews I conducted with journalists who are using FOIA particularly effectively, many stressed the value of going to court. Science journalist and New York University Professor Charles Seife said that he only started finding FOIA valuable when he found lawyers willing to fight his FOIA cases pro bono, including in a law school clinic.Footnote ³⁶ Independent journalist Seth Freed Wessler was so motivated by the success of litigating some of his requests that he cofounded a nonprofit dedicated to linking freelance reporters with pro bono counsel in FOIA cases.Footnote ³⁷ The New York Times provides another perfect example of the power of litigation. The newsroom’s top lawyer David McCraw told me that he often sues agencies over their long delays simply to force the agency to respond.Footnote ³⁸ Just filing a case can make a difference, even without the court making a decision.

But the truth is, these reporters are outliers. Federal litigation is slow, and it can sometimes take years to reach a conclusion, compounding the problems of delay. And the problem may be getting worse over time. A recent report by the Transactional Records Access Clearinghouse (TRAC) documented that FOIA litigation was facing longer and longer delays with a pending backlog of FOIA cases dragging on for years.Footnote ³⁹

Access to the courts and the length of the litigation process are not the only problems with judicial review. Even those requesters who make it into court and go through the lengthy litigation process find they do not always receive a truly independent federal court decision. Despite the mandate of de novo review, many FOIA scholars, including myself, have documented the various ways in which courts nonetheless defer to agency positions by, for example, invoking a special “substantial weight” standard for reviewing government affidavits in the national security context or by using various procedural shortcuts only in FOIA litigation that advantage the government, such as curtailing discovery.Footnote ⁴⁰

The US experience stands in stark contrast to a plethora of other countries around the world that have successfully implemented independent administrative oversight frameworks rather than relying on judicial review.Footnote ⁴¹ These bodies are typically styled as information commissions, and some of them have been operating for decades.Footnote ⁴²

For example, Mexico’s information commission, known as INAI for its initials in Spanish, is one of the world’s most celebrated among such institutions.Footnote ⁴³ During a nine-month research stay in Mexico on a Fulbright grant, I studied INAI and its role in Mexico’s transparency system.Footnote ⁴⁴ I concluded that five pillars of its work are central to its success.Footnote ⁴⁵ First, it operates a National Transparency Platform, a one-stop portal for requesters to submit, track, and appeal requests, along with a repository of previously released information and all records required to be made proactively available by government entities.Footnote ⁴⁶ This platform also facilitates all back-end work by government bodies and INAI. Second, it operates as an adjudication machine, deciding some 20,000 cases a year very quickly and ruling for the requester more than three-quarters of the time.Footnote ⁴⁷ Third, it engages in affirmative monitoring of compliance by following the enforcement of its own orders, sampling responses to unappealed requests to review, and auditing compliance with affirmative disclosure obligations.Footnote ⁴⁸ Fourth, it engages in concerted outreach and education, inside and outside of government, promoting a culture of understanding the fundamental human right to information as being inextricably linked with the exercise of other basic rights.Footnote ⁴⁹ And finally, the leadership body – the seven members of the commission itself – sets a tone and an expectation around transparency that touches everything the institution does.Footnote ⁵⁰ This well-funded institution is staffed with 800 employees and has separate state counterparts in every state in the country.Footnote ⁵¹

My interviews with journalists who interact with INAI demonstrate the potential of an information commission to return transparency laws to the press. Uniformly, the reporters I spoke with praised INAI, despite occasional qualifications. One reporter summarized it this way: “I do think it’s a very strong tool that we have as citizens, and as journalists, and academics. And I think it mostly works … I feel it is super important to have INAI.”Footnote ⁵² Another said: “I think the fact that there’s a centralized institution through which you can submit all requests is amazing.”Footnote ⁵³ When I asked one journalist if she was satisfied with INAI, she said, “[T]he truth is, despite everything, yes, I am satisfied. You can’t deny that it works well … if you see journalism in Mexico in the last 10 years, the key [to success] has been the transparency system.”Footnote ⁵⁴

A couple of journalists I talked to had experiences making information requests in both the United States and Mexico. They highlighted some important differences. For example, they saw the simplicity of the process in Mexico as a huge advantage, both in making requests and in appealing decisions. One reporter said, “I’m surprised to see [that] other people’s requests [are] often just a sentence that describes what they’re asking for without reference to law or anything, and sometimes that sentence will be a little bit hard to interpret, or a little bit … maybe they’re using informal language, and then I’ll look at the response and it will be like a very good response … Whereas in the United States, I feel like it would be an automatic denial.”Footnote ⁵⁵ Another journalist, who makes similar requests in Guatemala, Mexico, and the United States, ranked Mexico as the best of the three by far.Footnote ⁵⁶

Journalists routinely use INAI’s appeal process. One journalist said he appeals nearly every time he doesn’t receive everything he wanted, and he estimated that he wins the appeal 90 percent of the time.Footnote ⁵⁷ Another similarly reported appealing essentially every unsatisfactory response but estimated a lower success rate, around half of the time.Footnote ⁵⁸ Still, there was broad agreement that the process was both fast and easy to engage with.Footnote ⁵⁹

The news media also praised INAI’s role in facilitating proactive transparency, or acting as an archive or document repository. One journalist described her process of searching through past requests and responses to find information she needed for stories. She downloads databases of all past requests to a certain body for a certain period of time, then looks through them for key terms, and studies the data that was already released or uses that data to formulate her own, better-informed request.Footnote ⁶⁰ Another journalist also cited the National Transparency Platform as crucial, particularly in ensuring that proactive disclosures are available from state and local institutions.Footnote ⁶¹

To be sure, journalists lodged complaints about some of INAI’s failures. One cited his perception that INAI does not sufficiently weigh public interest in disclosure as allowed by the law.Footnote ⁶² More than one noted that even once they won an appeal at INAI, sometimes the responding government entity did not comply with INAI’s order.Footnote ⁶³ One journalist had even brought a lawsuit to challenge an order determining that compliance was achieved.Footnote ⁶⁴ Another asserted that, despite the ease of the process, it still advantaged sophisticated requesters and represented parties.Footnote ⁶⁵ Still, the overwhelmingly positive assessment of INAI and the repeated drumbeat of its indispensability in newsgathering were heartening themes of my interviews.

Unfortunately, INAI eventually became a victim of its own success. After public spats with the commission, former Mexican President Andrés Manuel López Obrador engaged a years-long campaign against INAI, culminating in recent constitutional reforms led by President Claudia Sheinbaum that will eliminate the commission entirely.Footnote ⁶⁶ While citing costs and inefficiencies as the impetus for reform, López Obrador and his successor took aim only after INAI acted as a meaningful check on government power, demonstrating, perhaps, the very power of the model itself.

One way to think about an information commission like INAI is that it acts as a public support or even a public subsidy to ensure that high-quality journalism continues. Subsidies or public funding for the news media, particularly local journalism, have been considered by policymakers, academics, and advocates.Footnote ⁶⁷ The investment in maintaining public information, in facilitating broad access to requests and to appeals, and in monitoring compliance with transparency laws government wide is a way to support journalism without direct monetary grants or other direct forms of subsidy. It is, in short, a way to return public records requests to the press.

In the United States, many of us hoped that the Office of Government Information Services (OGIS), which Congress created as part of the 2007 amendments to FOIA, would serve this sort of role.Footnote ⁶⁸ Unfortunately, despite some strengthening of that institution over time, it has never been given the resources or power necessary to fulfill the kind of role I envision. To begin, it does not have the power to issue binding orders but, rather, was designed to make policy recommendations and offer mediation services to resolve disputes between requesters and agencies. But recommendations are not orders, and at the end of the day, OGIS has no power to compel agencies to comply with the law. Moreover, OGIS is decidedly not an independent body. It is housed in the National Archives, itself an executive branch agency, and has already been beholden to some administration politics during its short life. Finally, it operates on a shoestring budget and with a tiny staff, woefully insufficient for the kind of demand we would expect for the services of a full-fledged information commission.

We should consider the formation of an information commission to administer and enforce FOIA obligations in the United States. I have previously described how such a body is possible within our current legal constraints and traditions and how it could be designed to withstand political pressure and facilitate access to information for the press and beyond.Footnote ⁶⁹

The time to return FOIA to the press is now. We are seeing the dangers of unchecked executive power around the world.Footnote ⁷⁰ Scholars, policymakers, and advocates are increasingly focused on questions of democratic and constitutional renewal. While FOIA is a statutory right, it has rightly been described as quasi-constitutional or foundational. Accordingly, the reforms needed to return FOIA to the press are not small ones: They, too, are foundational.