SCALIA J.,concurring
Historical evidence relating to the textually similar clause “the freedom of . . . the press” also provides no support for the proposition that the First Amendment excludes conduct of artificial legal entities from the scope of its protection. The freedom of “the press” was widely understood to protect the publishing activities of individual editors and printers. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 360 (1995) (Thomas, J., concurring in judgment); see also McConnell, 540 U. S., at 252–253 (opinion of Scalia, J.). But these individuals often acted through newspapers, which (much like corporations) had their own names, outlived the individuals who had founded them, could be bought and sold, were sometimes owned by more than one person, and were operated for profit. See generally F. Mott, American Journalism: A History of Newspapers in the United States Through 250 Years 3–164 (1941); J. Smith, Freedom’s Fetters (1956). Their activities were not stripped of First Amendment protection simply because they were carried out under the banner of an artificial legal entity. And the notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.[1]
- ↑ The dissent seeks to avoid this conclusion (and to turn a liability into an asset) by interpreting the Freedom of the Press Clause to refer to the institutional press (thus demonstrating, according to the dissent, that the Founders “did draw distinctions—explicit distinctions—between types of ‘speakers,’ or speech outlets or forms ”). Post, at 40 and n. 57. It is passing strange to interpret the phrase “the freedom of speech, or of the press” to mean, not everyone’s right to speak or pub- lish, but rather everyone’s right to speak or the institutional press’s right to publish. No one thought that is what it meant. Patriot Noah Webster’s 1828 dictionary contains, under the word “press,” the following entry:
“Liberty of the press, in civil policy, is the free right of publishing
Stromberg v. California, 283 U. S. 359 (1931), and a federal law until 1965, see Lamont v. Postmaster General, 381 U. S. 301 (1965).
