Media organizations, such as newspapers, must comply with generally applicable laws although such laws may have incidental effects on the exercise of free speech rights.1 The Supreme Court has, for example, affirmed that government may apply labor and antitrust laws to media organizations.2 The First Amendment may, however, inhibit government’s ability to enact laws that target or impact a particular medium.3 The constitutional treatment of the media depends on several factors, including the specific medium being regulated.4 While each form of media “tends to present its own peculiar problems,” the basic principles enshrined in the First Amendment do not apply to different forms of media with any less force.5 Further, the Supreme Court has suggested there is no distinction between media and nonmedia speakers within a particular medium for First Amendment purposes.6 Accordingly, whether a particular media regulation is constitutional frequently depends on the application of general free speech principles, rather than media-specific principles or principles that relate only to the freedom of the press.7

Before radio and television became commonplace in American households, government regulation of media focused on print media. The growth of broadcast media precipitated a change in the focus of federal media regulation. The Supreme Court has recognized that broadcast media may be subject to different First Amendment protections than print media.8 In the absence of characteristics that justify different First Amendment treatment, the Supreme Court analyzes restrictions on media using the same tools it uses generally to assess restrictions on speech, such as the use of strict or intermediate scrutiny to assess content-based or content-neutral regulations.9

Footnotes

1

See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (describing various federal laws to which media organizations are subject).

2

See Associated Press v. NLRB, 301 U.S. 103, 132–33 (1937) (holding that a newspaper publisher is subject to the National Labor Relations Act); Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 192–93 (1946) (holding the same for the Fair Labor Standards Act); Associated Press v. United States, 326 U.S. 1, 20 (1945) (holding the same for the Sherman Act); see also Citizen Pub’g Co. v. United States, 394 U.S. 131, 139 (1969) (holding that First Amendment did not protect newspapers from liability under the Sherman Act). The Supreme Court has suggested that antitrust regulation serves the First Amendment’s purpose by promoting “the widest possible dissemination of information from diverse and antagonistic sources.” Associated Press v. United States, 326 U.S. at 20; see also Lorain Journal Co. v. United States, 342 U.S. 143, 155–56 (1951) (injunction of anticompetitive conduct under the Sherman Act did not violate free press right); FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 798 (1978) (federal regulation limiting ownership of broadcast stations and daily newspapers in same geographic market did not violate First Amendment).

3

E.g., Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 582–83 (1983).

4

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) ( “Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems” ); see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969) (applying a unique First Amendment standard to radio and television broadcasters); cf. Denver Area Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727, 744–45 (1996) (plurality opinion) (relying in part on the pervasiveness and accessibility of cable television to uphold a law permitting cable operators to prohibit certain programming on leased access channels).

5

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952).

6

See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 352–53 (2010) (declining to recognize a distinction between media and nonmedia speakers for First Amendment purposes); Bartnicki v. Vopper, 532 U.S. 514, 525 n.8 (2001) (refusing to recognize a distinction between a radio commentator and a private citizen in a First Amendment challenge).

7

The Supreme Court has not directly addressed whether the Free Press Clause offers any different protections than those secured by the Free Speech Clause. Cf. Gitlow v. New York, 268 U.S. 652, 666 (1925) (conflating the rights of free speech and press in incorporating the rights against the states through the Fourteenth Amendment’s Due Process Clause). For more discussion, see

Overview of Freedom of the Press

, >https://constitution.congress.gov/browse/essay/amdt1-9-1/ALDE_00000395/.

8

Red Lion, 395 U.S. at 386.

9

See, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637, 656–57 (1994) (holding that “the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation . . . does not apply” to cable television, but recognizing unique characteristics of cable television as part of the First Amendment analysis). See generally

Overview of Content-Based and Content-Neutral Regulation of Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/.