Tim Tai, Yale Law School, has published The Most-Favored-Nation Press Clause. Here is the abstract.
The Supreme Court has largely treated the Press Clause as protecting dissemination of information, making it redundant to the Speech Clause. However, this blinkered reading ignores the need to protect “the press” as an institution, one that performs critical, democracy-enabling functions. Recent scholarship outlines four strands of arguments for revitalizing the Press Clause: historical, functional, precedential, and analogical. Existing literature has advanced the first three of these. This article makes a novel contribution to Press Clause scholarship by introducing the fourth strand—the analogical argument. Drawing on the Court’s own comparisons between the Press and Free Exercise Clauses, I contend that rationales for the emergent “most-favored- nation” doctrine of free exercise apply with equal or greater force to the press. Most-favored- nation demands equal treatment for politically disfavored groups, protecting their interests from being ignored or trampled over by majoritarian lawmakers. Such protection is now direly needed as a financially feeble press faces an overtly hostile political environment. Indeed, the Court recognized the importance of this protection decades ago, when it applied most-favored-nation reasoning to protect a newspaper from discriminatory taxation. Its more recent adoption of the doctrine to benefit religious claimants shows that the Court can and will reinvigorate a constitutional right when it wants to. The embrace of most-favored-nation in the free exercise realm thus offers a path for its return to Press Clause doctrine.
Download the article from SSRN at the link.