Regulation even if structurally calibrated in-
variably may touch editorial freedom. Iden-
tifying the point at which the First
Amendment ¹ becomes implicated is not un-
like pinpointing proximate cause for pur-
poses of determining tort liability. Just as the
consequences of negligence are not limitless,
the First Amendment does not become ac-
tivated by all official action conceivably or
remotely affecting editorial discretion. As
noted in previous chapters, the constitution
does not afford comprehensive immunity
that would blunt the operation of general
economic regulation or even licensing re-
quirements of a media-specific nature. Al-
though the line at which First Amendment
interests are actuated may be imprecise, con-
stitutional issues are inescapable when gov-
ernment directly concerns itself with
content.

Terms of the First Amendment have re-
mained fixed since its enshrinement in
1791. ² The universe which it governs and
societal attitudes toward the media, how-
ever, have mutated significantly. Two cen-
turies ago, the press essentially comprised
an assortment of partisan publications push-
ing competing political agendas. ³ Given the
technology of the time, information dissem-
inated by the press traveled in weeks and
months rather than immediately. ⁴ Consis-
tent with a singular service of commencing
and maintaining political debate, discrete
audiences identified with particular publish-
ers and tended to be forgiving of distortion
and imbalance. ⁵ The freedom of the press
clause did not enter substantively into con-
stitutional jurisprudence for 140 years after
its ratification. ⁶ By that time, new media
never contemplated by the framers had
emerged and acquired a presence that al-
most certainly would have exceeded their
imagination.

By its terms, freedom of the press is con-
cerned with editorial freedom. Modern con-
cepts, which have attempted to account for
perceived consequences of an expanded and
concentrated media industry, are more com-
plex. Contemporary First Amendment pro-
tection has become a function of both the
nature of the medium and the variant of
expression being propagated. The Court es-
sentially has created dual hierarchies within
which media and speech types are ranked
for First Amendment purposes. Consistent
with the prevalent media at the time of the
constitution's framing, and the press' most
prominent concern, the print media ⁷ and

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