The American Spectator

This distinction might have made sense in the 18th and 19th centuries, before the advent of radio and other spoken-word mass media. Today, however, it raises all sorts of questions. Is a TV station part of the institutional press, even though it produces spoken rather than written words? Does a lone blogger enjoy the same constitutional rights as a newspaper company? When the Times engages in speech by posting podcasts and videos on its website, is that protected too because the Times is part of the institutional press? What about a company like Salon Media Group, which uses no printing presses and publishes only online?

If the notion of a rigid legal distinction between “speech” and “the press” was not already non-sensical, the web renders it so. Almost every company has a website. Is it really plausible that the New York Times’s website has full protection under the Constitution while other companies’ sites have none at all?

In past generations, the New York Times Co. had a proud tradition as a defender of expansive First Amendment rights. It was the prevailing litigant in two landmark Supreme Court cases, New York Times Co. v. Sullivan (1964) and New York Times Co. v. U.S. (1971). The former, which established a strong presumption for free expression in defamation cases, involved a political advertisement. In the latter, the Pentagon Papers case, the Times was represented by a young lawyer named Floyd Abrams.

What a shame to see a once-great corporation become a fair-weather friend of free expression.