‘Nonmedia’ speakers don’t get full First Amendment protection, rules the Texas Court of Appeals

[Commentary] Do First Amendment protections -- for instance, the various rules that protect libel defendants -- apply to all speakers? Or are some of them limited to members of “the media,” however that might be defined? The great majority of precedents say that “the freedom of the press” extends to all who use mass communications, and that freedom of speech offers the same protection to speakers who use non-mass communications. The freedom of the press is the freedom for all who use the printing press and its technological descendants -- not just a freedom for a specific industry or profession, such as the media or professional journalists. This was the nearly unanimous view until about 1970; and even since then, it has been the view of the great majority of lower court precedents, and no Supreme Court precedent takes the contrary view.

Indeed, the Citizens United decision expressly stresses that “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” I’m sorry to say that the Texas Court of Appeals just joined this small minority, in the April 9 "Cummins v. Bat World Sanctuary" decision. This now requires Texas courts to now decide who counts as “media” for First Amendment purposes. Do book authors qualify? Filmmakers? Academics? Bloggers? (Does it matter whether they make money blogging? Whether they blog on The Washington Post site, even if they are not newspaper employees?) It seems unlikely that either the Texas Supreme Court or the US Supreme Court will agree to hear this case, partly because the Court of Appeals concluded that the bottom-line result would have been the same regardless of how the nonmedia rights issue was decided. But I hope that eventually higher courts will overrule the ruling.

[Eugene Volokh teaches free speech law at UCLA School of Law]