Data from legal scholars RonNell Andersen Jones and Sonja West indicates a decline in the U.S. Supreme Court’s mentions of the press in its written opinions. In a five-year period beginning in 1970, the court’s opinions included nearly 1,500 paragraphs referencing the press, a figure that dropped to fewer than 100 paragraphs during the 2015-2019 period.
First Amendment litigator Floyd Abrams told SCOTUSblog that the press clause has been sidelined because the protection for freedom of speech has been interpreted broadly, often placing journalists and other speakers under the same legal standards. While the First Amendment protects both speech and the press, the source notes that cases involving journalism have largely collapsed these into a single doctrine regarding the dissemination of information.
Historically, the court has provided specific protections to the institutional press regarding selective taxation, such as in the 1936 case *Grosjean v. American Press Co.*, which struck down a Louisiana tax affecting 13 newspapers. In 1983, the court reaffirmed this in *Minneapolis Star v. Minnesota Comm’r*, ruling that a tax structure singling out the press violated constitutional guarantees. However, in other areas, such as the 1972 case *Branzburg v. Hayes*, the court held that journalists do not have a First Amendment right to refuse grand jury testimony that would require them to identify confidential sources.
In response to this trend, Abrams and Sandra Baron of Yale Law School launched the Press Clause Project to advocate for a revitalization of the clause. Their report proposes that courts recalibrate newsgathering rights, including proposals for reserved seating for the press at public trials, protections against dispersal orders for journalists at public gatherings, and a right to view state executions. The project argues that the press clause has become "invisible" and recommends tests to distinguish journalists from other speakers, such as editorial independence and a history of reporting.
Until changes occur, individuals recording public events on mobile devices and professional reporters generally operate under the same legal framework for speech and dissemination. The Press Clause Project aims to ensure newsgathering is recognized as a protected constitutional activity separate from general speech. No upcoming court dates or specific deadlines for these proposed changes were reported.