Schafter on "the Press": A Response to Professor Volokh @MatthewSchafer @FordhamLawNYC

Matthew Schafter, Fordham University School of Law, has published "the Press": A Response to Professor Volokh. Here is the abstract.

For more than a decade, Professor Eugene Volokh's article-Freedom For The Press As An Industry, Or For The Press As A Technology? From The Framing To Today-has been recognized as the authoritative work on the meaning of press freedom at the Founding. In it, Volokh argued that "the Press" referred to in the Press Clause historically meant the printing press as a technology rather than as the journalistic enterprise we recognize today. As a result, he concluded the Founding generation must have understood freedom of the press as everyman's right to use the printing press and not as providing special rights for the institutional press. Proponents of that latter view, Volokh said, must look elsewhere than the text, history, or tradition of the Press Clause. This Article is not so much counter-thesis as it is cautionary tale. By examining Volokh's sources and reasoning, it explains how Volokh misunderstood the historical record and drew conclusions not supported by it. I show that Volokh's inquiry suffered from three problems: conceptual (defining "the Press" does not define the meaning of the Press Clause at the Founding), evidentiary (too little, and too unpersuasive), and methodological (he followed no method). I then explain that two premises on which Volokh based his article-that the newspaper industry at the Founding was insignificant and practiced no real journalism-are contrary to the historical record. I finally provide examples of press-specific rights claimed by early Americans to be protected under the banner of press freedom and suggest avenues of future research.

Download the article from SSRN at the link.