ZURCHER V. STANFORD DAILY: THE SUPREME COURT AND THE LIMITS OF THE FIRST AMENDMENT.

Abstract

The ratification of the Bill of Rights in 1791 brought freedom of the press into the sphere of constitutional legitimacy such that it could not be nullified by the whims of elected officials. Traditionally the guarantee of a free press has been treated as an adjunct of the Speech Clause with little, if any, independent status. Recently, however, that traditional conception has come under increasing attack. Many attorneys, judges and academicians have argued for a separation of the Press and Speech Clauses. For example, former U.S. Supreme Court Justice Potter Stewart has stated his belief that the Press Clause is a structural guarantee which provides greater First Amendment protection to the press than that generally accorded the public. Therefore, the U.S. Supreme Court's decision in Zurcher v. Stanford Daily (1978) that ratified searches of non-suspect, third-party newsmen exemplified for these supporters the nadir of press freedom in recent years. In this study the importance of the Zurcher decision to public policy, public law and legal studies is examined in detail. The study utilizes the systems model popularized by David Easton to observe the events leading up to the decision and both the judicial and legislative responses to that decision. In addition, a new theory of press freedom is presented which analogizes the Press Clause to the Free Exercise of Religion Clause. This theory suggests that the Press Clause should be separated from the Speech Clause in the same way as the Free Exercise Clause has been separated. This would establish the Press Clause as an independent clause granting a special status to the press: a status which the author believes to be warranted by the language of the First Amendment and the absolute necessity for a press free of governmental intrusion and regulation.