Journalism and the Debate over Privacy

By Craig L. Lamay | Go to book overview

2
The Structural Attributes of Press Freedom:
Private Ownership, Public Orientation,
and Editorial Independence
Randall P. Bezanson
University of Iowa College of Law

The distinction between the public and the private—between speech about public matters and speech concerning private matters, between censorship by public agencies and by private parties, between private speakers and government speech—permeates free speech doctrine. It accounts for the law of state action, 1 for the public forum doctrine, 2 for the gradients of constitutional protection accorded speech whose content is more or less public or political in character, 3 and for one of the mainstays of First Amendment theory, which is that speech is free as a means of facilitating self-government. 4

Much has been written about the distinction between the public and private in free speech law, not all of it favorable. 5 The distinction has grown up and matured in the crucible of free speech; in the tension between individual liberty of belief and the collective interests in the effective functioning of democratic government; 6 in the need to assign value to the artifact of expression even when it bears slim relationship to individual liberty; 7 and in the concomitant need to rationalize protection of speech acts that are grounded in liberty but bear scant relationship to self-government, culture, and general social and economic facts of life. 8

Although the distinction, ironically, has partly been forged in cases involving the press, such as New York Times Co. v. Sullivan,9 there has been little if any systematic attention in the judicial opinions or the academic literature to the distinction's possible relevance to the constitutional law of freedom of the press, or indeed to the possible, and possibly different, meanings of the concepts of public and private in the press setting. This is no doubt largely due to the fact that there is no distinct law of freedom of the press. Until recently at least, the free press guarantee has been seen as identical to the free speech guarantee. 10 Speech by journalists has as

-17-

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