In a five-year stretch beginning in 1970, Supreme Court opinions contained nearly 1,500 paragraphs that mentioned the press. From 2015 through 2019, that figure had fallen under 100. [1] The data, first assembled by legal scholars RonNell Andersen Jones and Sonja West in a 2021 study, is the empirical spine of a SCOTUSblog analysis published this week arguing that the First Amendment's press clause has become, in the words of one of the country's most prominent First Amendment litigators, functionally invisible.

"I think the main reason it's been sidelined is that the First Amendment protection of freedom of speech has been read broadly," Floyd Abrams told SCOTUSblog. "And so in many cases, the press and all other speakers or writers are in exactly the same boat and receive the same sort of legal protection." [1] Abrams co-founded the Press Clause Project at Yale Law School specifically to reverse that collapse, and the analysis traces how a constitutional clause with its own history, its own text, "Congress shall make no law... abridging the freedom of speech, or of the press", has been absorbed into a single, undifferentiated speech doctrine.

The clearest exception the analysis finds is a narrow line of cases on selective taxation of newspapers, running from 1936's Grosjean v. American Press Co., which struck down a Louisiana tax pushed by Senator Huey Long that he openly called a "tax on lying," through 1983's Minneapolis Star v. Minnesota, which struck a use tax that singled out newspapers as a class. [1] Beyond taxation, though, the press clause has repeatedly lost. In 1972's Branzburg v. Hayes, the Court held journalists have no First Amendment right to withhold a confidential source's identity from a grand jury. In 1974's Pell v. Procunier, it rejected any special press right to interview prison inmates. And in 1978's Zurcher v. Stanford Daily, it allowed police to search a newsroom under a valid warrant even when the newspaper itself was not a crime suspect. [1] Even the Court's most consequential press-adjacent ruling, 1964's New York Times v. Sullivan, collapsed speech and press into a single protected category rather than treating journalism as a distinct constitutional interest.

Yale's Sandra Baron, who co-founded the Press Clause Project with Abrams, put the diagnosis starkly: "The press clause seemed to have become an invisible, not simply neglected, but almost an invisible clause in the Constitution." [1] Their project's initial report calls for the courts to revisit Branzburg and Zurcher directly, and proposes concrete remedies: guaranteed press seating at public trials, protection from dispersal orders and curfews during public gatherings, and a right for journalists to witness state executions. [1]

None of this is abstract legal history in August 2026. The same week SCOTUSblog published its analysis, the Trump administration has been engaged in an open institutional dispute over control of the Kennedy Center and has threatened a Washington think tank, both live tests of exactly the newsgathering and access questions the press clause, on paper, exists to answer but which the doctrine review finds courts have declined to answer distinctly from ordinary speech claims for half a century. Dominic Coletti of the Foundation for Individual Rights and Expression's Student Press Freedom Initiative told SCOTUSblog that the doctrinal gap creates a practical risk: "What we don't want to see is a world in which access to those newsgathering protections is cut off, where we say there are people who have these protections because they work for a corporate news outlet or they have the right freelancing credentials, and then there are people who don't." [1]

That warning cuts against the seemingly protective idea of defining "the press" more precisely, which the Abrams-Baron proposal would require in order to extend it stronger rights than ordinary speakers. Coletti's preferred alternative is a broader newsgathering protection that applies regardless of institutional affiliation, precisely because the press clause's decline has left no settled legal category of "journalist" for a court to hand distinct rights to in the first place. Justice Lewis Powell wrestled with this same tension in 1978's First National Bank of Boston v. Bellotti, arguing that "there is no fundamental distinction between expression and dissemination", the exact reasoning the current SCOTUSblog analysis says has hollowed out the clause since. [1]

The paragraph-count data is not an argument that the Supreme Court has ruled against the press outright. It is a measurement of avoidance: a constitutional provision the Court once cited nearly 300 times a year, now cited fewer than 20 times a year, while institutional pressure on newsgathering access, from prison interviews to newsroom searches to, this week, a think tank and a performing-arts institution, keeps arriving in cases the Court can resolve entirely on speech-clause grounds without ever engaging the clause written specifically for the press.

-- ANNA WEBER, Berlin