First Amendment protections for the press’s newsgathering activities are an underdeveloped area of law. This article posits that the U.S. Supreme Court’s recent and controversial embrace of the Most-Favored-Nation (MFN) doctrine in deciding free exercise challenges could be co-opted to successfully challenge laws that burden the press’s newsgathering activities.
January 10, 2025 Feature
Finding Religion? Most-Favored-Nation Doctrine and the Press
Isaac Barnes May and Tobin Raju
In the free exercise context, the MFN doctrine subjects laws that treat any comparable secular activity more favorably than religious exercise to strict scrutiny. Applied to the First Amendment freedom of the press, the MFN doctrine would subject any law of purportedly general applicability that regulates newsgathering conduct but provides exceptions for analogous conduct carried out for non-newsgathering purposes to strict scrutiny.
This article concludes with two potential practical applications of this most-favored newsgatherer approach: (1) challenging drone laws, and (2) facilitating press access to prisons.
The Link Between the First Amendment’s Religion and Expression Clauses
Despite the fact that the religion and expression clauses are placed together in the text of the First Amendment, courts have historically treated them as disparate clauses. Some legal scholars have been critical of what they see as the Supreme Court’s choice to protect religion and religious groups by expansively construing the free exercise clause while not extending the same consideration to the press.
Some scholars have imagined what a unified First Amendment doctrine combining the religion and expression clauses might look like. Others have debated whether the ministerial exception doctrine might be a model for defining who is a member of “the press” for purposes of protection under the press clause. Ultimately, however, there has been little real interaction between the religion clauses and speech or press clause doctrine; for now, the link remains academic rather than reality.
Yet, textually and historically, there is a considerable connection between the religion and expression clauses. Any doctrine derived from the text of the First Amendment must contend with the fact that these clauses all appear next to each other, with little justification to treat them differently doctrinally. The idea of rights to the freedoms of speech and of the press and the free exercise of religion developed together in England, having roots in both Puritan theology and Enlightenment philosophy. When Thomas Jefferson declared in the Virginia Statute of Religious Freedom that “Almighty God hath created the mind free,” he was pairing freedom of speech and the free exercise of religion and was ending the state’s religious establishment, all rights that later found their way into the First Amendment.
Using MFN principles within the current free exercise doctrine to protect the press would be consistent with the founding era’s history, which may find a sympathetic audience at federal courts of appeals and the Supreme Court as they are currently—and for the foreseeable future—constructed.
The Current Understanding of Constitutional Protections for Newsgathering
The possibility of using the MFN doctrine to ensure the press is treated at least as favorably as other entities is appealing because journalists have few other unique legal protections. The Supreme Court has shied away from the idea that the press clause provides any heightened protection for journalistic work, and it has recently understood the press clause’s protections as being redundant with the speech clause.
Over 50 years ago, the Supreme Court in Branzburg v. Hayes warned that “without some protection for seeking out the news, freedom of the press could be eviscerated” and recognized that “news gathering is not without its First Amendment protections.” But while the Court recognized that the First Amendment protects newsgathering, it also explained that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”
In Cohen v. Cowles Media Co., the Supreme Court reaffirmed this principle in the context of newsgathering liability. There, the Court found that the First Amendment did not bar a confidential source from bringing a promissory estoppel claim under Minnesota law against newspaper publishers for breaching their agreement not to identify him as a source for their reporting. The Court explained that “generally applicable laws,” like Minnesota’s doctrine of promissory estoppel, “do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” The Court found that the challenged law was “generally applicable to the daily transactions of all the citizens of Minnesota” and did not “target or single out the press.”
First Amendment challenges to laws imposing liability on routine newsgathering activity, therefore, turn on whether such laws are “generally applicable” and merely “incidental” burdens on the press’s ability to gather and report the news.
Despite the years that have passed since Branzburg and Cohen, the jurisprudence of constitutional protections for newsgathering activities is relatively underdeveloped. Courts inconsistently determine whether a law is generally applicable or imposes incidental burdens on newsgathering activity.
Free exercise jurisprudence presents a plaintiff-friendly approach to answering whether a law is generally applicable or merely an incidental burden. When addressing free exercise, the Supreme Court has become increasingly willing to find that laws impact religious conduct are not generally applicable. If applied to the press, these decisions would provide extensive protections for newsgathering.
Most-Favored-Nation Doctrine
It took some years of development before the Court began to adopt the MFN doctrine, with several cases laying a doctrinal foundation. In Employment Division v. Smith, the Supreme Court ostensibly remade the free exercise clause doctrine to argue that the First Amendment did not provide for religious accommodations of the sort that had prevailed under Sherbert v. Verner and Wisconsin v. Yoder. Smith,however, had a loophole; the Court’s holding applied only to a law that incidentally burdened religious exercise through a “valid and neutral law of general applicability.” The Smith majority did not explicate the concept of general applicability, though it indicated it was synonymous with “religion-neutral laws.” The Court also held that any individualized exemptions to an otherwise generally applicable law must be extended in “cases of ‘religious hardship’” unless there was a “compelling reason.”
Following Smith,the Court in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah expanded on what constituted a “neutral law of general applicability.” The Court explained that a law is not neutral “if the object of the law is to infringe upon or restrict practices because of their religious motivation.” As to “general applicability,” the Court relied heavily on its First Amendment speech and press jurisprudence to conclude that laws that exempt “nonreligious conduct that endangers” the state’s interests to the same degree as the regulated religious conduct are not generally applicable.
While Lukumi was being litigated, Douglas Laycock—the petitioners’ attorney—published an article in which he explained that religion should “get something akin to most favored nation status.” What he meant by this was that “[r]eligious speech should be treated as well as political speech, religious land uses should be treated as well as any other land use of comparable intensity, and so forth.” If the state granted secular exemptions, it had to grant religious exemptions. MFN status is a creature of international trade agreements that entitles contracting nations to the same benefits its trade partner provides to any other nation. Applied in the free exercise context, “[t]he question is not whether one or a few secular analogs are regulated. The question is whether a single secular analog is not regulated,” and, if so, the secular exception triggers strict scrutiny.
In a significant expansion of Lukumi, then Judge Samuel Alito, writing for the Third Circuit in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, found that a police department’s provision of an exemption to its no-beard policy for medical reasons—but not religious reasons—reflected a discriminatory intent and the law was subject to strict scrutiny. Alito wrote that the language of “individualized exemptions” in Smith and Lukumi was meant to prevent the government from ever privileging secular motivations over religious ones.
The Supreme Court would begin to embrace MFN during the COVID-19 pandemic. Initially, the idea appeared in Justice Brett Kavanaugh’s dissent from a denial of injunctive relief in Calvary Chapel Dayton Valley v. Sisolak, drawing explicitly on Laycock’s formulation of the doctrine. Subsequently, in a 5–4 per curiam shadow docket opinion in Tandon v. Newsom, the Court sided with religious petitioners toenjoin California’s enforcement of COVID-19 restrictions on in-home gatherings because they inhibited in-home worship. On its face, the law treated in-home religious gatherings the same as in-home secular gatherings, but because the law permitted secular gatherings in commercial spaces, such as hair salons and movie theaters, it was not generally applicable. The Court firmly embraced a constrained view of general applicability, declaring “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the free exercise clause, whenever they treat any comparable secular activity more favorably than religious exercise.”
Finally, the next year, in Fulton v. City of Philadelphia, the Supreme Court decided a case against Philadelphia’s attempt to bar groups from being foster care providers if they were unwilling to place children with LGBTQ foster parents. The Court in Fulton ruled against the city, declaring that if there was a system of individualized exemptions, the law was not generally applicable. The Court reasoned that “[a] law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Where this leaves the doctrine is that if a law contains exemptions for nonreligious activities or a discretionary exemption, then religion also must be allowed an exemption.
Constitutional Justifications for MFN Doctrine and Parallels in Existing Press Clause Cases
Proponents of the MFN doctrine “maintain that it was established in Smith and Lukumi and therefore has the status of binding law.” The Court in Lukumi looked to its First Amendment freedom of press jurisprudence to identify what constitutes a law of “general applicability.” It is only natural for press advocates to then look to the Court’s free exercise jurisprudence to inform what constitutes a law of general applicability in the newsgathering context.
Indeed, at least one scholar has suggested that MFN principles are not anomalous in constitutional law and have cognates to Supreme Court decisions concerning freedom of the press. For instance, in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, the Court held that a use tax levied on newspapers for ink and paper consumed during publication violated the First Amendment because the tax was not generally applicable. Stressing the importance of general applicability, the Court explained that “[w]e need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency.” Conversely, laws that selectively exempt certain groups raise concerns about discriminatory purpose.
Laws that exempt conduct analogous to regulated newsgathering activity call into question a law’s general applicability. The Florida Star v. B.J.F. provides another example. There, the Court held that a law prohibiting “instruments of mass communication” from disclosing the name of a victim of sexual assault—which the defendant newspaper obtained from a public record—violated the First Amendment. The Court determined the law was fatally underinclusive because it failed to prohibit disclosure in an evenhanded manner. Justice Antonin Scalia also took issue with the law’s selective regulation of mass media, concurring with the decision because the “law has every appearance of a prohibition that society is prepared to impose upon the press but not upon itself.”
While the application of MFN to the press, rather than religious groups, is novel, MFN doctrine likely will continue to be used in the free exercise context and other unconventional ways. There have been increasing calls to expand MFN to other areas where it would have a radical impact. Perhaps most notably, abortion bans may not be generally applicable laws because they typically include very limited exemptions that do not accommodate individuals with religious convictions supporting abortion rights.
This article does not stake out a position on whether the Court’s adoption of the MFN doctrine in the free exercise context was appropriate. In fact, the authors share the alarm of other commentators that the adoption was “both haphazard and sloppy,” with potentially far-reaching implications for a wide range of important civil rights law. The doctrine might do what the Supreme Court had long warned against: threaten to “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
But the current composition of the Supreme Court suggests the doctrine is not leaving us anytime soon. Bringing newsgathering challenges pursuant to the MFN doctrine may be a way to give real bite to the press clause. And even if those challenges are ultimately rejected, such decisions may have the salutary effect of reigning in the doctrine’s application in the free exercise context.
Most Favored Nation for Newsgatherers
Applied to the First Amendment freedom of the press, the MFN doctrine would subject to strict scrutiny any law of purportedly general applicability that regulates newsgathering conduct but provides exceptions for similar conduct carried out for non-newsgathering purposes. There may be situations where the MFN doctrine would be of only limited value because laws that specifically exclude the news media may be subject to strict scrutiny as content-based laws or speaker-based proxies for content discrimination.
However, courts inconsistently apply existing precedent for what constitutes a content- or speaker-based law. For that reason, the MFN doctrine’s absolutist approach provides a more direct path to strict scrutiny than attempting to show a law is content-based. This article next addresses two circumstances where the government regulates newsgathering activity more than non-newsgathering activity and the MFN doctrine could be employed.
Drone Laws
In National Press Photographers Ass’n v. McCraw,the Fifth Circuit upheld a Texas law that restricted newsgatherers’ ability to use drones. Chapter 423 of the Texas Government Code criminalizes using a drone “to capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance on the individual or property captured in the image.” The law also criminalizes the publication of any such drone image and creates civil liability for capturing or publishing drone images.
This posed serious problems for Texas journalists, who rely on drone photography and video in their work. While the Texas law criminalized “surveillance,” it did not define the practice, and during the litigation, the State of Texas indicated surveillance could include journalism. This suggested journalists could be prosecuted under the law.
The law raises an MFN issue because Chapter 423 exempted at least 21 categories of permitted drone photography, despite the professed importance of the law for privacy protection. These exemptions included professors or students capturing images “for the purpose of professional or scholarly research,” real estate brokers “in connection with the marketing of real property,” land surveyors, engineers, oil pipeline operators, and insurance underwriters—all uses that implicate privacy interests. The law, however, did not include any provisions exempting newsgatherers. Under MFN theory, the existence of these other exemptions subjects Chapter 423 to strict scrutiny.
The Fifth Circuit diminished the press clause concerns raised by Chapter 423 with the observation that “the First Amendment does not guarantee the press a constitutional right of special access to information” and “does not invalidate every incidental burdening of the press.” The Texas law was honeycombed with exemptions that green-lit nearly every professional use of drone images except for reporting the news.
Chapter 423 disproportionately burdens journalists and impermissibly burdens press freedom, yet the Fifth Circuit determined the law was not speaker-based and rejected the newsgatherers’ challenge to their exclusion. Under the MFN doctrine, Chapter 423’s more favorable treatment for non-newsgathering conduct over newsgathering conduct would have meant the law was not generally applicable and subject to strict scrutiny.
Prison Access
The media’s ability to get access to incarcerated people is often heavily restricted. Because media access to prisons and jails is often a matter of state or local policy, it can vary greatly. There is no constitutional right of the media to speak with prisoners. This can pose a massive impediment to the press writing stories about vital matters, including the conditions in prisons.
MFN could potentially play a role in enabling press access because any governmental policy that permits other categories of visitors would also have to allow access to newsgatherers or face strict scrutiny. Colorado, for example, has policies that deny media access to correctional facilities at any time and makes all requests to interview inmates subject to approval by the administrative head of the facility.
The Colorado Department of Corrections has other policies that permit external faith group volunteers to provide religious support to prisoners. If MFN applied, the press could not be treated worse than religious groups and might have a comparable right of access. Further, the mere fact that access was discretionary in the regulation, similar to the discretionary exemption at issue in Fulton, should inherently permit access to the prison for newsgatherers.
Conclusion
MFN has rarely been discussed in a press clause context. While there is no precedent extending its application to the press, there are textual and structural reasons to believe it might. If the MFN doctrine did apply to newsgatherers, it would prove determinative in certain cases where the media is treated worse than at least one other actor. If courts accepted the notion that MFN applied to the press, it would serve as a powerful tool against governmental regulations that interfere with newsgathering.