Freedom of the Press

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FREEDOM OF THE PRESS

The constitutional basis for freedom of the press in the United States is the first amendment, which provides: "Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." In a constitutional interpretation the separate rights enumerated in the First Amendment are merged into a composite right to freedom of expression. Within this general system freedom of the press focuses on the right to publish. Originally concerned with the product of printing presses—newspapers, periodicals, books, pamphlets, and broadsides—the term "press" now includes the electronic media. In general the constitutional issues involving freedom of the press are similar to those pertaining to other aspects of freedom of expression. However, certain areas are of special interest to the press, particularly to the mass media.

Freedom of the press has its roots in English history. When printing presses were introduced into England at the end of the fifteenth century they were quickly brought under total official control. Through a series of royal proclamations, Parliamentary enactments, and Star Chamber decrees a rigid system of censorship was established. No material could be printed unless it was first approved by a state or ecclesiastical official. Further, no book could be imported or sold without a license; all printing presses were required to be registered; the number of master printers was limited; and sweeping powers to search for contraband printed matter were exercised. (See prior restraint and censorship.)

In 1695, when the then current licensing law expired, it was not renewed and the system of advance censorship was abandoned. The laws against seditious libel remained in effect, however. Under the libel law any criticism of the government or its officials, or circulation of information that reflected adversely upon the government, regardless of truth or falsity, was punishable by severe criminal penalties. Sir william blackstone, summarizing the English law as it existed when he published his Commentaries in 1769, put it in these terms: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon public actions, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity."

Developments in the American colonies followed those in England. Censorship laws existed in some of the colonies well into the eighteenth century. Likewise, prosecutions for seditious libel were not uncommon. in both England and America, however, there was strong opposition to the seditious libel laws. Thus in the famous zenger ' scase, where the publisher of a newspaper was prosecuted for printing satirical ballads reflecting upon the governor of New York and his council, the defense argued vigorously (but unsuccessfully) that truth should be a defense, and urged the jury (successfully) to give a general verdict of not guilty.

The law was in this state of flux when the First Amendment, with its guarantee of freedom of the press, was added to the Constitution in 1791. The specific intention of the Framers was never made explicit. It is generally agreed that the First Amendment was designed to make unconstitutional any system of advance censorship of the press, or "prior restraint," but its impact upon the law of seditious libel has been the subject of controversy. The latter issue was brought into sharp focus when the alien and sedition acts, which did include a modified seditious libel law, were enacted by Congress in 1798. Prosecutions under the Sedition Act were directed largely at editors of the press. The constitutionality was upheld by a number of trial judges, including some members of the Supreme Court sitting on circuit, but the issues never reached the Supreme Court. The lapse of the Alien and Sedition Acts after two years ended public attention to the problem for the time being.

For well over a century, although freedom of the press was at times not realized in practice, the constitutional issues did not come before the Supreme Court in any major decision. This situation changed abruptly after world war i as the Court confronted a series of First Amendment problems. Two of these early cases were of paramount importance for freedom of the press. In near v. minnesota (1931) the Court considered the validity of the so-called Minnesota Gag Law. This statute provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was "guilty of a nuisance," and could be enjoined from further committing or maintaining such a nuisance. The Court held that the statutory scheme constituted a "prior restraint" and hence was invalid under the First Amendment. The Court thus established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. In a second decision, gros-jean v. american press co. (1936), the Court struck down a Louisiana statute, passed to advance the political interest of Senator Huey Long, that imposed a two percent tax on the gross receipts of newspapers and periodicals with circulations in excess of 20,000 a week. The Grosjean decision assured the press that it could not be subjected to any burden, in the guise of economic regulation, that was not imposed generally upon other enterprises.

In the years since Near and Grosjean an elaborate body of legal doctrine, interpreting and applying the First Amendment right to freedom of the press in a variety of situations, has emerged. Before we turn to a survey of this constitutional structure, two preliminary matters need to be considered.

First, the functions that freedom of the press performs in a democratic society are, in general, the same as those served by the system of freedom of expression as a whole. Freedom of the press enhances the opportunity to achieve individual fulfillment, advances knowledge and the search for understanding, is vital to the process of self-government, and facilitates social change by the peaceful interchange of ideas. More particularly the press has been conceived as playing a special role in informing the public and in monitoring the performance of government. Often referred to as the "fourth estate," or the fourth branch of government, an independent press is one of the principal institutions in our society that possesses the resources and the capacity to confront the government and other centers of established authority. This concept of a free press was forcefully set forth by Justice hugo l. black in his opinion in new york times co. v. united states (1971) (the Pentagon Papers case): "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

A second preliminary issue is whether the fact that the First Amendment specifically refers to freedom "of the press," in addition to "freedom of speech," means that the press is entitled to a special status, or special protection, different from that accorded other speakers. It has been suggested that the First Amendment should be so construed. Thus Justice potter stewart has argued that the Framers of the Constitution intended to recognize "the organized press," that is, "the daily newspapers and other established news media," as "a fourth institution outside the Government," serving as "an additional check on the three official branches." As such an institution, he suggested, the press was entitled to enjoy not only "freedom of speech," available to all, but an additional right to "freedom of the press." Some commentators have echoed Justice Stewart's argument.

There are obvious drawbacks to according a special status to the "organized press." It is difficult to draw a line between "the press" and others seeking to communicate through the written or spoken word, such as scholars, pamphleteers, or publishers of "underground" newspapers. Nor are there persuasive reasons for affording the one greater advantages than the other. Any attempt to differentiate would merely tend to reduce the protection given the "nonorganized" publisher. In any event the Supreme Court has never accepted the distinction.

However, there are some situations where the capacities and functions of the "organized press" are taken into account. Thus where there are physical limitations on access to the sources of information, as where a courtroom has only a limited number of seats, or only a limited number of reporters can ride on the President's airplane, representatives of the "organized press" may legitimately be chosen to convey the news to the general public. Beyond this point, however, the rights of the "organized press" to freedom of expression are the same as those of any writer or speaker.

The constitutional issues that have been of most concern to the press fall into two major categories. One involves the constraints that may be placed upon the publication of material by the press. The other relates to the rights of the press in gathering information.

On the whole the press has won its battle against the law of seditious libel. The Sedition Act of 1798 has never been revived. In new york times co. v. sullivan (1964) the Supreme Court, declaring that the Sedition Act violated the central meaning of the First Amendment, said: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." Many states still retain criminal libel laws upon the books, but they have been so limited by the Supreme Court as to be largely inoperative. Even vigorous attacks upon the courts for their conduct in pending cases, traditionally a sensitive matter, are not punishable unless they present a clear and present danger to the administration of justice. (See contempt power.) Only the civil libel laws impose restrictions. The result is that the press is free to criticize the government, its policies, and its officials, no matter how harsh, vituperative, or unfair such criticism may be. Likewise it is free to publish information about governmental matters, even though incorrect, subject only to civil liability for false statements knowingly or recklessly made.

The extent to which the press can be prevented from publishing material claimed to be injurious to national security has become a matter of controversy in recent years. The issues are crucial to the operation of a democratic system. Clearly there are some areas, particularly those relating to tactical military operations, where government secrecy is justified. On the other hand, the process of self-government cannot go on unless the public is fully informed about matters pending decision. Moreover, the very concept of "national security," or "national defense," is virtually open-ended, capable of covering a vast area of crucial information. Hence any constitutional doctrine allowing the government to restrict the flow of information alleged to harm national security would be virtually without limits. In addition, claims of danger to national security can be, and have been, employed to hide incompetence, mistaken judgments, and even corruption on the part of government officials in power.

For these reasons no general statutory ban on the publication of material deemed to have an adverse effect upon national security has ever been enacted by Congress. Laws directed at traditional espionage do, of course, exist. And Congress has passed legislation, thus far untested, instituting controls in certain very narrow areas. Thus the Intelligence Identities Protection Act (1982) forbids disclosure of any information that identifies an individual as the covert agent of an agency engaged in foreign intelligence. Beyond this, however, statutory controls on freedom of the press in the national security area have never been attempted. Even during wartime, censorship of press reporting on information pertaining to military operations has taken place only on a voluntary basis.

The constitutional authority of the government to restrict the publication of national security information was considered by the Supreme Court in the Pentagon Papers case. There the government sought an injunction against the New York Times and the Washington Post to prevent the publication of a government-prepared history of United States involvement in the Vietnam War. The documents had been classified as secret but were furnished to the newspapers by a former government employee who had copied them. The government contended that publication of the Pentagon Papers would result in "grave and irreparable injury" to the United States.

The Supreme Court ruled, 6–3, that the attempt at prior restraint could not stand, concluding that the government had not met "the heavy burden of showing justification for the imposition of such a restraint." Several theories of the right of the government to prohibit the publication of national security information emerged, none of which commanded a majority of the Court. At one end of the spectrum Justices Black and william o. douglas thought that the government possessed no power to "make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." Justice william j. brennan held the same view, except that he would have allowed the government to stop publication of information that "must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea." Justices Stewart and byron white believed that a prior restraint was permissible if the government could demonstrate "direct, immediate, and irreparable damage to our Nation or its people," a showing they concluded had not been made in the case before them. Justice thurgood marshall, not passing on the First Amendment issues, took the position that, in the absence of express statutory authority, the government had no power to invoke the jurisdiction of the federal courts to prevent the publication of national security information. At the other end of the spectrum Chief Justice warren e. burger and Justices john m. harlan and harry l. blackmun, the dissenters, urged that the function of the judiciary in reviewing the actions of the executive branch in the area of foreign affairs should be narrowly restricted and that in such situations the Court should not attempt "to redetermine for itself the probable impact of disclosure on national security."

The result in the Pentagon Papers case was a significant victory for the press. Had the decision gone the other way the road would have been open for the government to prevent publication of any material when it could plausibly assert that national security was significantly injured. Yet the failure of the Court to agree upon a constitutional doctrine to govern in national security cases left the press vulnerable in future situations. Moreover, the issues were limited to an effort by the government to impose a prior restraint. The Justices did not address the question whether, if appropriate legislation were enacted, a criminal penalty or other subsequent punishment for publication of national security information would be valid.

In two subsequent cases the Supreme Court revealed some reluctance to restrict the executive branch in its efforts to control the publication of information relating to foreign intelligence. In snepp v. united states (1980) the Court upheld an injunction to enforce an agreement, which the Central Intelligence Agency required each of its employees to sign, that the employee would not publish any information or material relating to the agency, either during or after employment, without the advance approval of the agency. The Court treated the issue primarily as one of private contract law; it dealt with First Amendment questions only in a footnote, saying that the government has "a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to effective operation of our foreign intelligence service." Likewise in haig v. agee (1981) the Court upheld the action of the secretary of state in revoking the passport of a former CIA employee traveling abroad, on the grounds that he was causing "serious damage to the national security [and] foreign policy of the United States" by exposing the names of undercover CIA officers and agents. The constitutional right to travel abroad, said the majority opinion, is "subordinate to national security and foreign policy considerations," adding that [m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention." Unless these later decisions are limited to their somewhat unusual facts, the right of the press to publish national security information that the government wishes to keep secret could be sharply curtailed.

Civil libel laws have also been a matter of paramount concern to the press. For many years it was assumed that the First Amendment was not intended to restrict the right of any person, under common law or statute, to bring a suit for damages to reputation arising out of false and defamatory statements. In its well-known obiter dictum in chaplinsky v. new hampshire (1942) the Supreme Court had declared that there were "certain well-defined and narrowly limited classes of speech," including the "libelous," which had never been thought to raise any constitutional problem.

In time it became clear, however, that libel laws could be used to impair freedom of the press and other First Amendment rights. In 1964 the issue came before the Supreme Court in New York Times Co. v. Sullivan. In that case the commissioner of public affairs in Montgomery, Alabama, sued the New York Times for publication of an advertisement, paid for by a New York group called the Committee to Defend Martin Luther King, which criticized certain actions of the police in dealing with civil rights activity in Montgomery. Some of the statements in the advertisement were not factually correct. The Alabama state courts, after a jury trial, awarded the police commissioner $500,000 in damages. The majority opinion of the Court, stating that "libel can claim no talismanic immunity from constitutional limitations," went on to say: "Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." The Court ruled that public officials could recover damages in a libel action only if they could prove that a false and defamatory statement was made with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." Three Justices would have gone further and given the press full protection against libel suits regardless of proof of actual malice.

The "actual malice" rule for reconciling First Amendment rights with the libel laws was extended in 1967 to suits brought by "public figures," and in 1971 to all suits involving matters "of public or general interest." At this point it appeared that, although a majority of the Supreme Court had not gone the full distance, the press did have substantial protection against harassing libel suits. Weaknesses in the press position, however, soon developed. In 1974 the Court, changing directions, held that, apart from cases involving "public officials" and "public figures," libel laws would be deemed to conform to First Amendment standards so long as they did not impose liability in the absence of negligence. Moreover, the Court greatly narrowed the definition of "public figure," holding in one case that a person convicted of contempt of court for refusing to appear before a grand jury investigating espionage was not a "public figure." In addition, juries in some cases began to award large sums in damages, legal expenses skyrocketed, and the costs in time and money of defending libel suits, even where the defense was successful, often became a heavy burden. By the same token, persons or organizations without substantial resources found it difficult to finance libel actions.

Efforts to dispose of unjustified libel suits at an early stage by motions to dismiss received a setback from the Supreme Court in herbert v. lando (1979). Lieutenant Colonel Anthony Herbert brought a libel suit against Columbia Broadcasting System because of a program on "60 Minutes" which suggested that Herbert had falsely accused his superior officers of covering up war crimes. Conceding he was a "public figure" and had to show "actual malice," Herbert sought in discovery proceedings to inquire into the mental states and editorial processes of the CBS officials who were responsible for the program. The Court held that, despite the chilling effect of such probing and the resulting protraction of libel proceedings, the right to make such inquiries was inherent in the "actual malice" rule. The result of the Herbert case has been to diminish substantially the value to the press of the "actual malice" doctrine.

Because of these considerations, sections of the press as well as some commentators have urged that libel laws are incompatible with the First Amendment and should be abolished, at least where matters of public interest are under discussion. The courts, however, have shown no disposition to follow this course. The solution most in accord with First Amendment principles would be to provide for a right of reply by the person aggrieved. Yet this poses other difficulties. The press argues, with considerable justification, that it would be impossible for the government to supervise and enforce an effective right of reply system without sacrificing the independence of the media in the process. Federal Communication Commission regulations now grant a limited right of reply where "personal attacks" are made over radio or television and, because of the pervasive governmental controls already in place, such regulation probably does not appreciably reduce existing freedoms of the electronic media. But any broad extension to the printed press or to other forms of communication would almost certainly be seriously inhibiting. Indeed in miami herald publishing co. v. tornillo (1974) the Supreme Court unanimously invalidated a state statute requiring a newspaper to grant equal space for a political candidate attacked in its columns to reply. Moreover, practical difficulties, such as finding a suitable forum, would greatly limit the effectiveness of any attempt to substitute a right of reply for an action for damages. Thus the tension between the libel laws and freedom of the press is likely to continue.

A similar tension exists between freedom of the press and the right of privacy. Common law and statutory actions for invasion of privacy are permitted in most states. Moreover, the Supreme Court has recognized a constitutional right of privacy, running against the government, which would seem to impose restrictions upon disclosure to the press of certain information in the government's possession. The Supreme Court has held that the publication of material already in the public domain, such as the name of a rape victim which is available from public records, cannot be prohibited. However, it has never ruled upon the broad issue whether publication of information that is true but is alleged to invade the privacy of an individual can under some circumstances be restricted. The press has expressed concern over the possibility that the right of privacy might be used to curtail its freedom to publish. If the right of privacy is not narrowly limited—and there is presently no agreement upon the scope of the right—the chilling effect upon the press could be substantial. Nevertheless, in view of the current power of the press and the relative weakness of persons seeking to preserve privacy, any danger to the independence of the press from recognition of the right of privacy would seem to be remote.

Another conflict between freedom of the press and rights of the individual arises over the publication of news relating to criminal proceedings. The administration of justice is, of course, a matter of great public concern, and the role of the press in informing the public about such matters is crucial to the maintenance of a fair and effective system of justice. In most cases no conflict arises. On the other hand press reporting of occasional sensational crimes can be of such a nature as to prejudice the right of an accused to a fair trial guaranteed by the due process clause and the Sixth Amendment. (See free press / fair trial.)

A number of remedies are available to the courts by which fairness in criminal proceedings can be assured without imposing restrictions upon the conduct of the press. These include change of venue, postponement of the trial, careful selection of jurors to weed out those likely to be prejudiced by the publicity, warning instructions to the jury, sequestration of witnesses and jurors, and, as a last resort, reversing a conviction and ordering a new trial. By and large the courts have found the use of these devices adequate. In some cases, however, trial courts have issued "gag" orders prohibiting the press from printing news about crimes or excluding the press from courtrooms.

In nebraska press association v. stuart (1976) the Supreme Court dealt at some length with the "gag order" device. The majority opinion pointed out that the trial judge's order constituted a prior restraint, "the most serious and least tolerable infringement on First Amendment rights," but declined to hold that the press was entitled to absolute protection against all restrictive orders. The issue, the Court ruled, was whether in each case the newspaper publicity created a serious and likely danger to the fairness of the trial. And that issue in turn depended upon what was shown with respect to "(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger." The Court's ruling thus left the issue open to separate decision in each instance. The conditions laid down by the Court for issuance of a restrictive order, however, afford little room for use of that device except under rare circumstances. Three Justices urged that a prior restraint upon publication in this situation should never be allowed.

The exclusion of the press from courtrooms in criminal cases has also received the attention of the Supreme Court. Initially the Court rejected the contention that the Sixth Amendment's guarantee of a public trial entitled the press and the public to attend criminal trials, holding that the right involved was meant for the benefit of the defendant alone. Subsequently, however, in richmond newspapers, inc. v. virginia (1980) the Court recognized that the First Amendment extended some protection against exclusion from criminal trials. The Court again refused to hold that the First Amendment right was absolute, but it did not spell out the nature of any exceptions. Because it is always possible in a criminal trial for the judge to sequester the jury, few occasions for closing trials are likely to arise. On the other hand, the right of the press to attend pretrial hearings, where opportunity for sequestration does not exist, was left uncertain.

For many years the press has urged the courts to permit the use of radio, television, and photographic equipment in courtrooms. The courts have been reluctant to allow such forms of reporting. And in 1964 the Supreme Court overturned the conviction of Billie Sol Estes, accused of a notorious swindle, on the grounds that the broadcasting of parts of the trial by radio and television had been conducted in such a manner as to deprive him of a fair trial. Recently the courts have been more willing to open the courtroom to the electronic media and many of them have done so. The movement received the sanction of the Supreme Court in chandler v. florida (1981) when an experimental program in Florida, which allowed broadcast and photographic coverage of trials subject to certain guidelines and under the control of the trial judge, was upheld by a unanimous vote.

The right of the press to gather news, as distinct from its right to publish the news, raises somewhat different issues. Freedom of the press implies in some degree a right to obtain information free of governmental interference. Indeed the Supreme Court in branzburg v. hayes (1972) expressly recognized that news-gathering did "qualify for First Amendment protection," saying that "without some protection for seeking out the news, freedom of the press could be eviscerated." But the limits of the constitutional right are difficult to define and remain undeveloped. The issue has arisen in three principal areas: reporter ' sprivilege, the application of the fourth amendment to the press, and the right of the press to obtain information from the government.

The press has consistently asserted a right to refuse to disclose the sources of information obtained under a pledge of confidentiality—a claim known as "reporters' privilege." From the point of view of the press the right to honor a commitment to secrecy is essential to much reporting, particularly investigative reporting into organized crime, government corruption, and similar sensitive areas. On the other hand, under certain circumstances the need to obtain evidence in the possession of a reporter is also pressing, particularly where the information is necessary for defense in a criminal prosecution or to prove malice in a libel suit. Over the years the courts have generally refused to recognize the reporters' privilege, but they have attempted to avoid open conflict with the press. Reporters nevertheless continued to urge their claim, often to the point of going to jail for contempt of court. a number of states have passed legislation recognizing the privilege in whole or in part, but the courts have tended to construe such statutes in a grudging manner, sometimes invoking constitutional objections.

The question whether reporters could invoke the privilege as a constitutional right under the First Amendment came before the Supreme Court in the Branzburg case. The reporters, who had refused to appear before grand juries, did not assert an absolute privilege but claimed they should not be compelled to give testimony unless the government demonstrated substantial grounds for believing they possessed essential information not available from other sources. The Court, in a 5–4 decision, rejected their claims. The majority opinion said that reporters had no greater claims to refuse testimony than other citizens. However, Justice lewis f. powell, whose vote was necessary to make the majority, expressed a more qualified position in a concurring opinion : "if the newsman … has reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement," the court should strike the "balance of these vital constitutional and societal interests on a case-by-case basis." In practice the courts appear to have accepted the Powell formula. Thus, although reporters cannot count on substantial constitutional protection the courts still prefer to avoid direct confrontation with the press tradition that reporters will not reveal confidential sources.

The First Amendment right to freedom of the press and the Fourth Amendment right to be secure from unreasonable searches and seizures have historically been closely linked. It was the general warrants, used in America to obtain evidence of customs violations (and in England to find seditious publications), that in large part prompted the framing of the Fourth Amendment. At times the Supreme Court has recognized that Fourth Amendment protection extends with particular rigor to governmental intrusions affecting First Amendment rights. In the much discussed case of zurcher v. stanford daily (1978), however, the Court displayed less sympathy for the traditional position. The issue was whether the police could search the offices of a student newspaper for evidence of criminal offenses growing out of a student demonstration, or whether they should be confined to the issuance of a sub-poena requiring the newspaper to produce what evidence it had. Despite the vulnerability of the press to police searches tht could result in the ransacking of their news rooms, the Court by a 5–3 vote approved the warrant procedure. The press greeted the decision with strong criticism, mixed with alarm.

The third major issue with respect to operations of the press relates to the right of the press to obtain information from the government. The constitutional basis for such a claim grows out of the broader doctrine of the right to know. For many years the Supreme Court has recognized that the First Amendment embraces not only a right to communicate but also a right to receive communications. (See listeners ' rights.) The press has insisted that this feature of the First Amendment includes a right to have access to information in the possession of the government. Because a major purpose of the First Amendment is to facilitate the process of self-government, a strong constitutional argument can be advanced that, apart from a limited area of necessary secrecy, all material relating to operations of the government should be made available to the public. The press urged this position in a series of cases where it sought access to prisons in order to interview inmates and report on conditions inside. The Supreme Court, however, was not receptive. In rejecting the press proposals four of the Justices expressly declared in Houchins v. KQED (1978) that "the First and Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government."

In 1980, in the Richmond Newspapers case, the Supreme Court shifted its position. In ruling that the press had a First Amendment right to attend criminal trials the majority relied heavily upon the right-to-know doctrine. Moreover, the concurring Justices were plainly willing to carry the right-to-know concept beyond the confines of the particular case before them. As Justice john paul stevens correctly observed, the decision constituted "a watershed case": "never before has [the Court] squarely held that the acquisition of newsworthy material is entitled to any constitutional protection whatsoever." The full scope of the right to obtain information from the government remains to be seen. The development, however, is potentially one of great significance for the press.

Taken as a whole, freedom of the press in the United States rests upon a relatively firm constitutional footing. The press has not been granted any special status in the First Amendment's structure, but its general right to publish material, regardless of potential impacts on government operations or other features of the national life, has been accepted. There are some weaknesses in the position of the press. The law with respect to publication of national security information is obscure and, in its present form, poses some threat to press freedoms. The press is also vulnerable to libel suits, as the protections thought to have been afforded by the "actual malice" rule have not been altogether realized. Likewise the courts have been reluctant to assist the press in its news-gathering activities. From an overall view, however, constitutional developments have left the press in a position where it is largely free to carry out the functions and promote the values sought by the Framers of the First Amendment.

Thomas I. Emerson
(1986)