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In many circumstances, a broad umbrella of shared rights for the press and the public is perfectly adequate. But there are also times when statutorily, and even constitutionally, we should be providing unique protection to those who, if granted rights beyond those available to all speakers, will use those rights to benefit society as a whole. In these areas, our ongoing refusal to conceptualize and legally recognize the specialness of the press function has robbed us of public benefits.

The Freedom of Information Act context is a perfect illustration of this. Federal agencies are so swamped by requesters with non-newsworthy, non-public-oversight purposes that they do not have the time, resources, or incentives to respond well to journalistic requests. By forcing FOIA to be everything to everyone, we have left it unable to provide any real system of accountability and transparency for anyone. FOIA dynamics serve as a microcosm of a much larger truth we have ignored to our peril for too long: the specialness of the press function sometimes requires separate, special protections for those performing it.

This essay explores settings in which, as with FOIA, a system of equivalent rights for the press may mean no meaningful rights at all. The consequences—for governmental accountability, community discourse, and the health of our democracy—are grave. Those performing the press function simply cannot do what we need them to do if they are clumped with everyone else. It harms them, but more importantly, it harms us.