First Nat. Bank of Boston v. Bellotti

Mr. Chief Justice Burger,

concurring.

I join the opinion and judgment of the Court but write separately to raise some questions likely to arise in this area in the future.

*796 A disquieting aspect of Massachusetts’ position is that it may carry the risk of impinging on the First Amendment rights of those who employ the corporate form — as most do— to carry on the business of mass communications, particularly the large media conglomerates. This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from corporations such as the appellants in this case.

Making traditional use of the corporate form, some media enterprises have amassed vast wealth and power and conduct many activities, some directly related — and some not — to their publishing and broadcasting activities. See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 248-254 (1974). Today, a corporation might own the dominant newspaper in one or more large metropolitan centers, television and radio stations in those same centers and others, a newspaper chain, news magazines with nationwide circulation, national or worldwide wire news services, and substantial interests in book publishing and distribution enterprises. Corporate ownership may extend, vertically, to pulp mills and pulp timberlands to insure an adequate, continuing supply of newsprint and to trucking and steamship lines for the purpose of transporting the newsprint to the presses. Such activities would be logical economic auxiliaries tó a publishing conglomerate. Ownership also may extend beyond to business activities unrelated to the task of publishing newspapers and magazines or broadcasting radio and television programs. Obviously, such far-reaching ownership would not be possible without the state-provided corporate form and its “special rules relating to such matters as limited liability, perpetual life, and the accumulation, distribution, and taxation of assets . . . .” Post, at 809 (White, J., dissenting).

In terms of “unfair advantage in the political process” and “corporate domination of the electoral process,” post, at 809-810, it could be argued that such media conglomerates as I de *797 scribe pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo, supra; ante, at 791 n. 30. In Tornillo , for example, we noted the serious contentions advanced that a result of the growth of modern media empires “has been to place in a few hands the power to inform the American people and shape public opinion.” 418 U. S., at 250 .

In terms of Massachusetts’ other concern, the interests of minority shareholders, I perceive no basis for saying that the managers and directors of the media conglomerates are more or less sensitive to the views and desires of minority shareholders than are corporate officers generally. 1 Nor can it be said, even if relevant to First Amendment analysis — which it is not — that the former are more virtuous, wise, or restrained in the exercise of corporate power than are the latter. Cf. Columbia Broadcasting System v. Democratic National Comm., 412 U. S. 94, 124-125 (1973); 14 The Writings of Thomas Jefferson 46 (A. Libscomb ed. 1904) (letter to Dr. Walter Jones, Jan. 2, 1814). Thus, no factual distinction has been identified as yet that would justify government restraints on the right of appellants to express their views without, at the same time, opening the door to similar restraints on media conglomerates with their vastly greater influence.

Despite these factual similarities between media and non-media corporations, those who view the Press Clause as somehow conferring special and extraordinary privileges or status on the “institutional press” — which are not extended to those *798 who wish to express ideas other than by publishing a newspaper — might perceive no danger to institutional media corporations flowing from the position asserted by Massachusetts. Under this narrow reading of the Press Clause, government could perhaps impose on nonmedia corporations restrictions not permissible with respect to “media” enterprises. Cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731 , 767-770 (1977). 2 The Court has not yet squarely resolved whether the Press Clause confers upon the “institutional press” any freedom from government restraint not enjoyed by all others. 3

I perceive two fundamental difficulties with a narrow reading of the Press Clause. First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a “special” or “institutional” privilege. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77 , 88-99 (1975). The common 18th century understanding of freedom of the press is suggested by Andrew Bradford, a colonial American newspaperman. In defining the nature of the liberty, he did not limit it to a particular group:

“But, by the Freedom of the Press, I mean a Liberty, within the Bounds of Law, for any Man to communicate to the Public, his Sentiments on the Important Points of *799 Religion and Government; of proposing any Laws, which he apprehends may be for the Good of his Countrey, and of applying for the Repeal of such, as he Judges pernicious. . . .

“This is the Liberty of the Press, the great Palladium of all our other Liberties, which I hope the good People of this Province, will forever enjoy . . . .” A. Bradford, Sentiments on the Liberty of the Press, in L. Levy, Freedom of the Press from Zenger to Jefferson 41-42 (1966) (emphasis deleted) (first published in Bradford’s The American Weekly Mercury, a Philadelphia newspaper, Apr. 25, 1734).

Indeed most pre-First Amendment commentators “who employed the term 'freedom of speech’ with great frequency, used it synonomously with freedom of the press.” L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960).

Those interpreting the Press Clause as extending protection only to, or creating a special role for, the “institutional press” must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available, cf. Lange, supra, at 89-91; (b) argue that events after 1791 somehow operated to “constitutionalize” this interpretation, see Bezanson, supra n. 3, at 788; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. See Nimmer, supra n. 3, at 640-641.

To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs, 4 while the Press Clause *800 focuses specifically on the liberty to disseminate expression broadly and "comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U. S. 444, 452 (1938). 5 Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order — political and religious— devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which gen *801 erally were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication.

The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange, supra, at 100-107. The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England — a system the First Amendment was intended to ban from this country. Lovell v. Griffin, supra, at 451-452 . Further, the officials undertaking that task would be required to distinguish the protected from the unprotected on the basis of such variables as ¡content of expression, frequency or fervor of expression, or ownership of the technological means of dissemination. Yet nothing in this Court’s opinions supports such a confining approach to the scope of Press Clause protection. 6 Indeed, the Court has plainly intimated the contrary view:

“Freedom of the press is a 'fundamental personal right’ which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’ . . . The informative function asserted by representatives of the organized press ... is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow *802 of information to the public . . . .” Branzburg v. Hayes, 408 U. S. 665, 704-705 (1972), quoting Lovell v. Griffin, supra, at 450, 452 .

The meaning of the Press Clause, as a provision separate and apart from the Speech Clause, is implicated only indirectly by this case. Yet Massachusetts’ position poses serious questions. The evolution of traditional newspapers into modem corporate conglomerates in which the daily dissemination of news by print is no longer the major part of the whole enterprise suggests the need for caution in limiting the First Amendment rights of corporations as such. Thus, the tentative probings of this brief inquiry are wholly consistent, I think, with the Court’s refusal to sustain § 8’s serious and potentially dangerous restriction on the freedom of political speech.

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. “[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ‘. . . the liberty of the press is no greater and no less . . .’ than the liberty of every citizen of the Republic.” Pennekamp v. Florida, 328 U. S. 331, 364 (1946) (Frankfurter, J., concurring).

In short, the First Amendment does not “belong” to any definable category of persons or entities: It belongs to all who exercise its freedoms.

It may be that a nonmedia corporation, because of its nature, is subject to more limitations on political expression than a media corporation whose very existence is aimed at political expression. For example, the charter of a nonmedia corporation may be so framed as to render such activity or expression ultra vires; or its shareholders may be much less inclined to permit expenditure for corporate speech: Moreover, a nonmedia corporation may find it more difficult to characterize its expenditures as ordinary and necessary business expenses for tax purposes.

It is open to question whether limitations can be placed on the free expression rights of some without undermining the guarantees of all. Experience with statutory limitations on campaign expenditures on behalf of candidates or parties may shed some light on this issue. Cf. Buckley v. Valeo, 424 U. S. 1 (1976)

Language in some cases perhaps may be read as assuming or suggesting no independent scope to the Press Clause, see Pell v. Procunier, 417 U. S. 817, 834 (1974), or the contrary, see Bigelow v. Virginia, 421 U. S. 809, 828 (1975). The Court, however, has not yet focused on the issue. See Lange, The Speech and Press Clauses, 23 UCLA L. Rev. 77 (1975); Nimmer, Introduction — Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech?, 26 Hastings L. J. 639 (1975); cf. Bezanson, The New Free Press Guarantee, 63 Va. L. Rev. 731 (1977).

The simplest explanation of the Speech and Press Clauses might be that the former protects oral communications; the latter, written. But the historical evidence does not strongly support this explanation. The *800 first draft of what became the free expression provisions of the First Amendment, one proposed by Madison on June 8, 1789, as an addition to Art. 1, § 9, read:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 Annals of Cong. 434 (1789).

The language was changed to its current form, “freedom of speech, or of the press,” by the Committee of Eleven to which Madison’s amendments were referred. (There is no explanation for the change and the language was not altered thereafter.) It seems likely that the Committee shortened Madison’s language preceding the semicolon in his draft to “freedom of speech” without intending to diminish the scope of protection contemplated by Madison’s phrase; in short, it was a stylistic change.

Cf. Kilbourn v. Thompson, 103 U. S. 168 (1881); Doe v. McMillan, 412 U. S. 306 (1973) (Speech or Debate Clause extends to both- spoken and written expressions within the legislative function).

It is not strange that “press,” the word for what was then the sole means of broad dissemination of ideas and news, would be used to describe the freedom to communicate with a large, unseen audience.

Changes wrought by 20th century technology, of course, have rendered the printing press as it existed in 1791 as obsolete as Watt’s copying or letter press. It is the core meaning of “press” as used in the constitutional text which must govern.

Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931),which examined the meaning of freedom of the press, did not involve a traditional institutionalized newspaper but rather an occasional publication (nine issues) more nearly approximating the product of a pamphleteer than the traditional newspaper.