“The Press” A Response to Professor Volokh ft. Professor Matthew Schafer

"For more than a decade, Professor Eugene Volokh’s article—Freedom For The Press As An Industry, Or For The Press As A Technology? From The Framing To Today—has been recognized as the authoritative work on the meaning of press freedom at the Founding. In it, Volokh argued that the Press Clause’s reference to “the Press” meant the printing press as a technology rather than as the journalistic enterprise we recognize today. On that basis, he concluded that the Founding generation understood the Press Clause not as providing special rights for the institutional press but as securing every man’s right to use the printing press. Those in favor of a Press Clause that specially protected the press, he said, must look elsewhere than the text or history of that Clause. 

[Matthew Schafer's] Article calls Volokh’s into doubt. By examining his sources and reasoning, I show how he misunderstood the historical record and drew conclusions unsupported by it. Specifically, Volokh’s inquiry suffered from three problems: conceptual (defining “the Press” does not define the meaning of the Press Clause at the Founding), evidentiary (too little, too unpersuasive), and methodological (he followed none). I then explain that two premises on which Volokh based his article—that the newspaper industry at the Founding was insignificant and practiced no real journalism—are contrary to the historical record and academic consensus. Contrary to Volokh’s view that press-specific rights are a modern invention, I finally provide examples of them from the Founding era and posit that early Americans recognized such rights because they understood them ultimately to inure to the benefit of the public in the form of the news. The news, in turn, helped secure public liberty. I close by calling on Volokh to revisit his thesis."