“Who is a member of the press?”

The Third Circuit, in January of 2013, said something that most folks were saying many years before:

More recently, membership in the Fourth Estate has been democratized. Access to blogs, smartphones, and an extensive network of social media sites (not the least of which are Twitter and Facebook) have transformed all of us into potential members of the media.

PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013).

We’re late to this case, which was published in January, more than six months ago. But what’s interesting about this remark, which appears in footnote 24 of the opinion, is that the court immediately backs away from the principle due to the specific facts of the case.

You see, in this case, the court was called upon “to decide whether a state statute restricting access to a polling place infringes on the media’s First Amendment right to gather news.” Obviously, part of that inquiry hinged upon who was the media. As the court itself asked: “Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless.”

So, the remainder of footnote 24:  “While in almost any other situation this would be a boon to a free and democratic society, in the context of the voting process, the confusion and chaos that would result from a potentially limitless number of reporters in a polling place would work the opposite effect, potentially creating confusion, frustration, and delay. This is to say nothing of our earlier holding that the rights of access for the press and public are co-extensive. In this situation, anyone could record in the polling place if the First Amendment protected the right of access thereto.” (Emphasis in original).

How about that?