From Watergate to Ken Starr: Potter Stewart's 'Or of the Press' A Quarter Century Later
3 Pages Posted: 13 Nov 2011
Date Written: April 1, 1999
Abstract
Much has happened in the realm of the First Amendment, as well as in constitutional law and politics more generally, in the 25 years since Justice Stewart wrote “Or of the Press.” Today seems a particularly fitting time to take a close second look at Justice Stewart’s ideas, given the recently-concluded impeachment affair that sparked so many people to draw parallels to and distinctions from the Watergate affair that inspired Stewart’s reflections. And so, with memories of Bill Clinton, Ken Starr and Monica Lewinsky still quite fresh, I shall try in the next few paragraphs to sketch my own (admittedly tentative) thoughts on the two big points Justice Stewart advanced a quarter century ago that (1) the so-called Press Clause of the First Amendment was designed to serve a government-checking function, by facilitating systematic scrutiny and critic of the three branches of government to uncover and prevent abuse of government power; and (2) that because of this checking function, the Press Clause ought to be understood as a “structural” provision of the Constitution that gives the “organized press — the daily newspapers and other established news media" — some rights that the rest of us do not necessarily enjoy under the Speech Clause of the First Amendment.
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