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What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes: what distinct functions does the press perform and what distinct vulnerabilities does the press possess? The press serves the public through its unique watchdog, educator, and proxy roles. These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, negative theory offers an important tool for understanding the Press Clause as providing an especially robust shield from the government’s retaliation. By directing judicial attention to the reasons to distrust the government’s adverse treatment of the press, this chapter demonstrates how negative First Amendment theory can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules, and by informing their application of those rules once chosen.
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