Academic journal article Texas Law Review

Institutional Rights, Individual Litigants: Standing to Sue under the Press Clause*

Academic journal article Texas Law Review

Institutional Rights, Individual Litigants: Standing to Sue under the Press Clause*

Article excerpt

I. Introduction

The Supreme Court has produced countless opinions interpreting the Speech Clause of the First Amendment,1 but it has had remarkably little to say about the Press Clause's command that "Congress shall make no law . . . abridging the freedom . . . of the press ___ "2 To be sure, contemporary First Amendment doctrine provides significant protection to the press, but it provides that protection exclusively by way of the Speech Clause. The core liberties that are essential to the functioning of the press - the freedom to publish without license or prior restraint;3 the right of access to courtrooms and other judicial proceedings;4 and the safeguard of elevated libel-liability standards when publishing on matters of public concern5 - all are protected by the Speech Clause.6 The question remains open: what does the Press Clause mean?

In the face of the Court's silence, legal academics have taken up that question, and a novel theory has emerged as the leading contemporary view of the meaning of the Press Clause.7 This institutional view of the Press Clause argues that the Press Clause prohibits the government from interfering with or undermining the institutional role of the press. According to the institutional view, the Press Clause does not create special individual rights available only to those persons who can prove they are "press." Individual members of the press have the same individual expressive rights as the rest of us, rights that emanate from the Speech Clause. Rather, the Press Clause protects the special function of the institution called "the press." That function, broadly speaking, is to serve as a check on the power of government and to convey information to the public. No particular individual has a right to perform that function, but the press, collectively, does. In short, an institutional view of the Press Clause would mean that the rights of the press as an institution are greater than the sum of the individual rights of its constituent parts.

The institutional view of the Press Clause is in its nascent stages of development, and numerous basic questions about its coherence and viability remain unanswered. The idea of an institutional right - a right that does not vest in any particular individual - is unfamiliar to constitutional litigation8 and to the courts that adjudicate constitutional claims.9 Courts adjudicate the rights of individual litigants on a case-by-case basis, and their power to do so is subject to a number of constitutionally mandated limitations. Central among them is the doctrine of standing: courts may act only when judicial action will redress a concrete injury to one of the parties before the court. The idea of an institutional Press Clause thus raises a difficult question: who would have standing to enforce it?10 The true scope of a right is determined by the available remedy. If individual members of the press would not have standing to sue to enforce institutional Press Clause rights, then the institutional view of the Press Clause is dead on arrival.

This Note will argue that the constitutional requirement that litigants must have standing to sue does not undercut the institutional view of the Press Clause. A close examination of contemporary standing doctrine will reveal that individual journalists clearly would have standing to enforce institutional Press Clause rights. Part II of this Note will summarize the institutional view of the Press Clause as it has been articulated and developed to date. Part III will introduce the black-letter requirements of standing and highlight the standing problems raised by the institutional view of the Press Clause. Part IV will demonstrate that injury to institutional Press Clause rights would satisfy standing doctrine's requirement of injury in fact. Specifically, Part IV will argue that the doctrine of jus tertii should expand to accommodate suits under the Press Clause, just as it has expanded to accommodate overbreadth challenges under the Speech Clause. …

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