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Freedom of the Press

FREEDOM OF THE PRESS

The right, guaranteed by thefirst amendmentto the U.S. Constitution, to gather, publish, and distribute information and ideas without governmentrestriction; this right encompasses freedom fromprior restraintson publication and freedom fromcensorship.

The First Amendment to the U.S. Constitution reads, in part, "Congress shall make no law… abridging the freedom of speech, or of the press." The courts have long struggled to determine whether the Framers of the Constitution intended to differentiate press freedom from speech freedom. Most have concluded that freedom of the press derives from freedom of speech. Although some cases and some legal scholars, including Justice potter stewart, of the U.S. Supreme Court, have advocated special press protections distinct from those accorded to speech, most justices believe that the Freedom of the Press Clause has no significance independent of the Freedom of Speech Clause.

The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice warren e. burger, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press, and that there is no need to distinguish between the two rights:

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.

The Court has generally rejected requests to extend to the press privileges and immunities beyond those available to ordinary citizens. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), it held that a journalist's privilege to refuse to disclose information such as the names of informants is no broader than that enjoyed by any citizen. As long as an inquiry is conducted in good faith, with relevant questions and no harassment, a journalist must cooperate.

Justice Stewart's dissent in Branzburg urged the Court to find that a qualified journalistic privilege exists unless the government is able to show three things: (1) probable cause to believe that the journalist possesses information that is clearly relevant; (2) an inability to obtain the material by less intrusive means; and (3) a compelling interest that overrides First Amendment interests. In an unusual break with tradition, several circuit courts have applied Stewart's test and ruled in favor of journalists seeking special First Amendment protection. Nonetheless, the Supreme Court has steadfastly held to its decision in Branzburg, and shows no sign of retreating from its position that the First Amendment confers no special privileges on journalists.

Laws that affect the ability of the press to gather and publish news are suspect, but not automatically unconstitutional. In Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991), reporters for two Twin Cities newspapers were sued for breach of contract when they published the name of their source after promising confidentiality. The reporters claimed that the law infringed their First Amendment freedom to gather news unencumbered by state law. The Court held that the law did not unconstitutionally undermine their rights because its enforcement imposed only an incidental burden on their ability to gather and report information. Writing for the majority, Justice byron r. white said that laws that apply to the general public and do not target the press do not violate the First Amendment simply because their enforcement against members of the press has an incidental burden on their ability to gather and report the news: "Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations." The Cohen decision indicates the Court's continued unwillingness to extend special First Amendment protection to journalists.

Generally, the First Amendment prohibits prior restraint, that is, restraint on a publication before it is published. In a landmark decision in near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court held that the government could not prohibit the publication of a newspaper for carrying stories that were scandalous or scurrilous. The Court identified three types of publications against which a prior restraint might be valid: those that pose a threat to national security, those that contain obscene materials, and those that advocate violence or the overthrow of the government.

The government argued that publication of certain material posed a threat to national security in the so-called Pentagon Papers case, newyork times co. v. united states, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). There, the government sought an injunction against newspapers that were planning to publish classified material concerning U.S. policy in Vietnam. The Court found that the government had not proved an overriding government interest, or an extreme danger to national security if the material were to be published. The justices reiterated their position that a request for a prior restraint must overcome a heavy presumption of unconstitutionality.

The Court is steadfast in its holding that prior restraints are among the most serious infringements on First Amendment freedoms and that attempts to impose them must be strictly scrutinized. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), the Court overturned a state court's attempt to ban the press from a criminal trial. The Court held that gag orders, although not per se invalid, are allowable only when there is a clear and present danger to the administration of justice.

Freedom of the press, like freedom of speech, is not absolute. Notwithstanding the limitations placed on it, the press exercises enormous power and influence, and is burdened with commensurate responsibility. Because journalists generally have access to more information than does the average individual, they serve as the eyes, ears, and voice of the public. Some legal scholars even argue that the press is an important force in the democratic system of checks and balances.

In the wake of the september 11th attacks in 2001, the White House placed pressure on the five major television networks not to broadcast videotaped statements by terrorist mastermind Osama bin Laden and his associates. The networks had shown a videotape of bin Laden, and this angered the White House. In early October 2001, the networks agreed not to show such statements again without reviewing them first. The decision came after a conference call among U.S. national security adviser Condoleezza Rice and the heads of the networks. The White House feared that broadcasts from suspected terrorists could contain anything from incitement to coded messages. This agreement aroused concerns that the press was forfeiting its responsibility to report all of the news. Commentators noted that the rest of the world would see the bin Laden tapes via television and the internet, and that the security concerns raised by the U.S. government thus would have little impact.

The balance between restraint and responsibility continued to be tested during the war against terrorism and the 2003 invasion of Iraq. In contrast to the 1991 Gulf War, where the press was kept away from the battlefield, the war in Iraq featured "embededded" journalists, who traveled and reported in real time among the U.S. forces. However, the press was restricted to disclosing only certain types of information due to security concerns.

further readings

"News Media, Administration Struggle Over Press Freedom, National Security." 2001. Associated Press (October 12).

Wagman, Robert J. 1991. The First Amendment Book. New York: World Almanac.

cross-references

Broadcasting; Cameras in Court; Evidence "Journalists' Privilege" (In Focus); Fairness Doctrine; Federal Communications Commission; Libel and Slander; Mass Communications Law; New York Times Co. v. Sullivan; Pretrial Publicity; Sheppard, Samuel H.; Shield Laws; Trial.

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"Freedom of the Press." West's Encyclopedia of American Law. . Encyclopedia.com. 19 Oct. 2017 <http://www.encyclopedia.com>.

"Freedom of the Press." West's Encyclopedia of American Law. . Encyclopedia.com. (October 19, 2017). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/freedom-press

"Freedom of the Press." West's Encyclopedia of American Law. . Retrieved October 19, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/freedom-press

press, freedom of the

freedom of the press, liberty to print or to otherwise disseminate information, as in print, by broadcasting, or through electronic media, without prior restraints such as licensing requirements or content review and without subsequent punishment for what is said. Freedom of the press, which has been limited not only by governments but at times by churches, is absolute in no country. In modern democracies it is rarely attacked by overt forms of censorship but is often compromised by governments' ability to withhold information, by self-censorship in reaction to various pressures, by selective government "leaking" of information or disinformation, and by other factors.

In the United States, freedom of the press and the broader freedom of speech (see speech, freedom of) are protected by the First Amendment to the Constitution and are considered fundamental rights of the people. In practice, though, some kinds of speech and publication (e.g., obscenity or violations of copyright) are considered outside the amendment's purview, and others, like commercial speech (advertising or product claims), receive a reduced level of protection. In addition, broadcasters are subject to government licensing requirements. The protections to be afforded users of on-line computer services, the Internet, and other new means of publication are the focus of a developing debate; in 1996 a federal district court panel struck down the new Communications Decency Act, holding that Internet communications were entitled to the same degree of protection as printed communications.

History

Historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may "excite disaffection" against constituted authority (see lese majesty). Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication.

Early English Restrictions and Developments

In England, where the struggle for press freedom first began, the appearance of unauthorized publications resulted in a royal proclamation (1534) requiring prepublication licensing. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton, in his Areopagitica (1644), attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton's objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished.

Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government. There was no clear definition of what constituted seditious libel, and in the 18th cent. the printing of parliamentary debates had to be disguised as debates between classical figures. At this time, both true and false criticism of the government was considered libel. In fact, legal doctrine proclaimed that "the greater the truth the greater the libel." Only in the mid-19th cent. did truth become admissible as a defense in English libel cases.

In the United States

The defense of John Peter Zenger against libel charges in 1735 is often seen as the cornerstone of American press freedom. After the American Revolution, several states provided for freedom of the press, and the First Amendment (1791) to the U.S. Constitution declared that "Congress shall make no law … abridging the freedom of speech or of the press." Whether these acts were intended to prohibit prosecution for seditious libel or merely to prohibit prior restraint has been a matter of controversy. In reaction to the Sedition Act (1798), a more libertarian interpretation of the First Amendment became dominant, which saw it as rejecting seditious libel as a crime. The First Amendment was later (beginning in the 1920s) applied to all the states by judicial interpretation of the Fourteenth Amendment (1868).

Wartime situations often present challenges to the legal limits of press freedom. What was looked upon as irresponsible reporting during the Civil War led to attempts by civil and military authorities to impose restrictions upon the press. Appeals by the War Department for publishers to voluntarily suppress news that was strategic to the war were, however, largely ineffective. During World War I, near hysteria over the possibility of sabotage led Congress to pass the Espionage Acts (1917) and the Sedition Act (1918). These acts limited freedom of the press to such an extent that not only was censorship exercised against pro-German publications but also against German-language publications and those advocating socialism or pacifism.

In 1931, the Supreme Court, in Near v. Minnesota, for the first time declared almost all forms of prior restraint to be unconstitutional. In World War II the Office of Censorship, under the direction of Byron Price, expanded upon techniques developed by George Creel's Censorship Board of World War I. The new office supervised (1941–45) the most comprehensive censorship in U.S. history. Compliance was voluntary, however, and was based on the office's suggestion to editors on topics to avoid. Because Price and his assistants were respected journalists themselves, newspapers and journals cooperated. Similar cooperation was accorded to the Office of War Information, which controlled the flow of news from government agencies. As a result, the government rarely took punitive action.

After the war, many news organizations undertook campaigns against secrecy in government, maintaining that the withholding of public records threatens freedom of the press. As world tensions heightened during the cold war in the 1950s and 60s, defense officials often protested that the mere absence of war did not justify peacetime openness in the press.

In the late 1960s and early 70s, there were frequent charges and countercharges between journalists and government officials concerning the withholding of information on the Vietnam War by the government. The only recognized grounds for prior restraint, national security, was tested in 1971 when Daniel Ellsberg, a former government employee who believed that information that should be made public was being withheld by the government, released the Pentagon Papers, a collection of classified government documents concerning the Vietnam War. The government tried to block their publication, but the U.S. Supreme Court, in New York Times Co. v. United States (1971), permitted their release.

The First Amendment has not been extended to the gathering as well as the publication of news. The experience of the Vietnam War led the U.S. government to restrict the access of reporters in combat areas in subsequent military encounters. This practice, used during the 1983 invasion of Grenada and the 1991 Persian Gulf War, was bitterly resented by many reporters. In domestic affairs, although a number of states have passed shield laws, which permit journalists to refuse to disclose confidential information and sources to law-enforcement bodies, the U.S. Supreme Court has recognized no unrestricted right of press confidentiality.

Bibliography

See P. Lahav, Press Law in Modern Democracies (1984); W. W. Van Alsytne, Interpretations of the First Amendment (1984); L. Levy, The Emergence of a Free Press (1985).

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Freedom of the Press

FREEDOM OF THE PRESS

FREEDOM OF THE PRESS. SeeFirst Amendment .

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"Freedom of the Press." Dictionary of American History. . Encyclopedia.com. 19 Oct. 2017 <http://www.encyclopedia.com>.

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freedom of the press

freedom of the press: see press, freedom of the.

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"freedom of the press." The Columbia Encyclopedia, 6th ed.. . Encyclopedia.com. 19 Oct. 2017 <http://www.encyclopedia.com>.

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