Freedom of the Press
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
Barron, Jerome A. 1973 Freedom of the Press for Whom? Bloomington: Indiana University Press.
Levy, Leonard W., ed. 1966 Freedom of the Press from Zenger to Jefferson. Indianapolis: Bobbs-Merrill.
Lofton, John 1980 The Press as Guardian of the First Amendment. Columbia: University of South Carolina Press.
Nelson, Harold L., ed. 1967 Freedom of the Press from Hamilton to the Warren Court. Indianapolis: Bobbs-Merrill.
Schmidt, Benno C., Jr. 1976 Freedom of the Press vs. Public Access. New York: Praeger.
Siebert, Fredrick Seaton 1952 Freedom of the Press in England 1476–1776. Urbana: University of Illinois Press.
Symposium 1975 First Amendment and the Media. Hastings Law Journal 26:631–821.
Freedom of the Press
Freedom of the Press
Freedom of the press is a type of freedom of expression. Two factors make it different from freedom of speech. First, since it involves publication, there ordinarily is an interval of time between composition and public dissemination. If governmental authorities learn of the impending publication of material they wish to keep from the public, they have a period of time in which to act. Even in the broadcast area of the media, there usually is a script or even a tape of the story made before it is put on the air. Second, while speech is often done by a lone individual, the press is mostly made up of organizations—newspapers, magazines, radio stations, and television stations.
justifications for press freedom
Every citizen, including those who write for and edit publications, enjoys a fundamental human right to impart and receive information. In addition, a free press is an important check on government. Governments usually want their citizens to believe that those in power are wise and trustworthy, and that their policies are working flawlessly. Thus, they customarily expend a good bit of energy trying to let the public know how well things are going. However, a free press will find its own sources of information and report what is actually happening. By exposing misguided policies, incompetence, dishonesty, and corruption, a free press helps to hold government accountable.
This possibility is, in fact, what makes governments so sensitive about press freedom. Every government wants the press to portray it in a positive light, and the only way they can guarantee that is by regulation or outright control.
three important distinctions
There is an important difference between the print side of the press and the broadcast side. Newspapers and magazines can be produced without limit, and often at a fairly low cost. Radio and television outlets, however, rely on the allocation of broadcast frequencies, which almost have to be regulated by government to prevent chaos. Through its involvement in assigning frequencies, the government automatically has more control over radio and television than over the print media.
Second, there is a difference between the freedom to express opinions and the freedom to publish facts. Those who defend freedom of the press agree that opinions should be printed without hindrance. However, facts are another matter. Sometimes there are facts that could damage national security if made public (disclosure of "cutting edge" military technology, for example). Outside the area of national security, in most modern societies governments control many facts that may be needed for the public to make informed judgments about candidates for office, or whether certain policies are having their intended impact. Examples include the health effects of certain prescription drugs, the effects of pesticides, the treatment of prisoners, and automobile safety tests. The degree to which the press should be able to demand access to such information is a matter of debate.
Finally, although a connection exists between democracy (governments chosen by open and fair elections) and freedom of the press, no universal correlation exists between democracy and press freedom. Some non-elected governments allow freedom of the press, and there have been times when democratically elected governments have moved to silence the press.
Even in countries with the strongest protections for freedom of the press, newspapers and other media outlets are not immune from prosecution for what they publish. If they cause harm to someone—such as the loss of a job—and if what they published was false, the press can be held financially responsible for committing libel. Furthermore, every country has laws prohibiting the sharing of legitimate military and security secrets. If material of this type came into the possession of a newspaper and they chose to publish it, they might well find themselves facing criminal charges.
The more important question is whether the government can engage in prior restraint and prohibit the publication of such information beforehand. The United States provides a good example of the issues involved in prior restraint. The Constitution's First Amendment provides that: "Congress shall make no law … abridging the freedom … of the press." During the Vietnam War (1964–1975), a stolen copy of a government report on the war (the so-called "Pentagon Papers") was given to the New York Times. The president's advisers learned of the newspaper's possession of the document. Alleging that it contained sensitive national security information, they asked the federal courts to issue an order forbidding its publication. The Supreme Court refused to issue the order, saying that any request for prior restraint would have to prove beyond any doubt that irreparable harm would follow publication. Thus, in the United States it is exceedingly difficult for the government to obtain prior restraint.
However, there is one important exception. Under some circumstance, a trial judge may issue a "gag order" to the press. Securing a fair trial is such an important value that it may trump the right of the press to publish information about the trial, even if that information might be of interest to the public.
The attempt by Third World governments to establish a New World Information and Communication Order (NWICO) in the 1970s was an important threat to freedom of the press. Some of this program's backers, although not all, had benign motives, which illustrates that purity of motive does not always guarantee purity of outcome.
In support of NWICO, many less developed countries argued that the dominance of world media by Western communications organizations produced a one-way flow of messages from developed to developing nations that tended to paint a distorted picture of them. When less developed nations were not ignored, which was most of the time, their failures were emphasized while their accomplishments were downplayed. The former Soviet Union and its satellites joined in this critique.
While the accusing governments were trying to challenge the dominance of the Western press in the international realm, they were arguing for what they called "development journalism" in their own nations. According to this argument, the overriding goal of Third World governments was to secure economic development. Accordingly, all national resources, including the mass media, should be marshaled toward that end. In short, government must control the press for the greater good until a certain level of economic development was reached, at which time the "luxury" of a free press could be granted.
At the 1976 meeting of the United Nations Educational, Scientific, and Cultural Organization (UNESCO), a group of these nations proposed making all governments "responsible for the activities in the international sphere of all mass media under their jurisdiction ." (Sussman 2003, 15). Then, they sought to establish a legal "right to reply" to any objectionable coverage. Such an approach would have had serious repercussions for freedom of the press. After a number of acrimonious meetings over several years that led the United States and the United Kingdom to temporarily withdraw from UNESCO, the proposal was finally put to rest. The issues behind the dispute remain, however, and there are periodic calls in international forums for a resurrected NWICO.
techniques of control
The most severe restrictions on freedom of the press occur in those countries that have laws that explicitly forbid freedom of the press and provide severe punishment for anyone breaking them. This usually is combined with outright government ownership of all media. Examples include Iraq under Saddam Hussein (b. 1937), and sometimes communist China.
Short of such draconian measures, governments have utilized a variety of laws to keep the press docile and cooperative. For example, some countries have "security laws." These measures make it a crime to publish anything damaging to national security. National security is then defined so broadly that almost anything (news about a rise in prices, a housing shortage, and so forth) can be construed as falling under its rubric. Another approach is the enactment of "insult laws" that forbid the insulting of a public official. Under these acts, even the slightest criticism can be deemed an insult. Finally, some countries have passed laws requiring "responsible journalism." While it is true that the press can be irresponsible, when government officials are able to decide what is sober, reflective journalism and what is unmerited ranting, the formula for intimidation is firmly in place.
Some nations also have experimented with laws that require journalists to procure a license from the government. This scenario does not necessarily allow only pro-government journalists to work. For example, Costa Rica—a relatively free society—once had a journalists' license law. However, such a law can easily be manipulated to accomplish that end.
Even without legal sanctions , there are other ways to create a more pliable press. Sadly, a common one is to have police or unofficial militias detain, abuse, or threaten journalists who probe into sensitive areas. A softer approach is to use economic pressure, such as the placing of government ads in friendly papers but not elsewhere.
new world information and communication order (nwico)
The New World Information and Communication Order (NWICO) is a phrase that was popularized by a 1980 United Nations Educational, Scientific, and Cultural Organization (UNESCO) report called "Many Voices, One World." Although NWICO was never precisely defined, the term reflected the belief that transnational corporations' domination of mass media threatened national identity and self-respect in developing countries. The "Many Voices" report was issued by the MacBride Commission, chaired by the Irish politician Seán MacBride. The report was highly controversial in its recommendations that developing countries should have the right to control the content of news reports about themselves; that journalists should be licensed and asked to subscribe to a code of conduct; and that communications resources should be redistributed.
Most Western journalists were opposed to NWICO on the grounds that it represented a threat to freedom of the press, particularly the freedom to report unfavorable news about developing countries. Other experts pointed out that better distribution of media technology would not automatically fix the economic and political problems of the poorer nations. The United States, the United Kingdom, and Singapore withdrew from UNESCO in response to the MacBride report—although the United Kingdom eventually rejoined in 1997, followed by the United States in 2003.
The rise of the Internet has reopened the 1980s debates about NWICO. The February 2005 UNESCO conference on "Freedom of Expression in Cyberspace" renewed journalists' concerns that the United Nations wants to control the Internet in order to impose global censorship rules.
Freedom of the press has been written into a variety of international agreements. The most widely applicable one is the United Nations Universal Declaration of Human Rights, which was adopted in 1948. It provides that "Everyone has the right to freedom of opinion and expression; this right includes freedom to … receive and impart information and ideas through any media and regardless of frontiers." (Article 19). The European Convention on Human Rights, adopted in 1950, holds that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." However, it adds that "This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises." (Article 10). In 1978 most Western Hemisphere nations signed the American Convention on Human Rights. One of its provisions stated: "Everyone has the right to freedom of thought and expression. This includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice." (Article 13)
The methods used to enforce these documents vary. The United Nations relies on a largely ineffective body of fifty-three nations called the United Nations Commission on Human Rights to study complaints and issue reports. The European Convention created a multinational court to which individuals in the affected countries may bring actions. Most of the signatory countries have incorporated the convention into their domestic law, giving the court's decisions legal status inside a country. Therefore, in many cases the actions of governments have been overturned and implementation has followed. The American Convention is enforced by a hybrid. There is an Inter-American Commission that investigates complaints and makes recommendations. If satisfaction is not obtained, there is the Inter-American Court on Human Rights. Although it has had some successes to its credit, the American Convention is not incorporated into the domestic law of the signatories. Therefore, national governments are free to ignore it if they so choose.
government versus private action
In addition to the actions of governments, private actions also are used to silence the press. In some instances, militant religious or ideological groups threaten or even kill journalists. In others, economic pressure is brought to bear. Depending on the circumstances, these factors can be very effective. Governments sometimes move to protect the press. However, at other times private groups may be acting with the acquiescence or even the support of the government.
Despite numerous instances where freedom of the press has been denied in the contemporary world, long-run trends have been favorable. At the beginning of the twentieth century, colonial powers controlled much of Africa and Asia, and granted little freedom of any kind. Throughout Eastern Europe and the Middle East, old-fashioned autocracies of one sort or another ruled and freedom of the press was unheard of. The press situation in most of Latin America also was quite precarious. Only in a handful of Western nations was there anything approaching a free press, and it often was rather restricted by contemporary standards.
The 1930s to the 1980s witnessed the rise of ruthless totalitarian states such as Nazi Germany, Joseph Stalin's (1879–1953) Soviet Union, Mao Tse-tung's (1893–1976) China, and a variety of imitators. As previously noted, many of the Third World's newly independent states practiced "development journalism" after World War II (post-1945).
By the 1990s, freedom of the press was making inroads almost everywhere. The collapse of communism opened the doors to press freedom in many places formerly under Soviet rule. While some of the successor states (Turkmenistan in particular) have developed into dictatorships and some (such as Ukraine and Russia) have since moved to restrict freedom of the press, the situation is still more fluid than in the past. Russian President Vladimir Putin (b. 1952) closed the last independent television station in early 2003, and print journalists have been intimidated on a number of occasions. However, even Putin felt obliged to meet with leaders of the European Union (EU) in 2001 and agreed that "Freedom of speech and pluralism in the media are essential democratic principles and core values for a genuine EU-Russia partnership" (freedomforum.org, 2001).
There also has been a decided change in thinking about economic development, with the new orthodoxy being that a free press is a necessary ingredient for, and not a barrier to, economic growth. Nobel Prize-winning economist Amartya Seen (b. 1933), stated that freedom of the press is "an integral component of development." (Sussman 2003, 27). The World Bank also has taken the position that a press free of government ownership will aid economic development.
At the same time there has been growth in Freedom of Information laws, or statutes that allow journalists to obtain information more readily from government agencies. Great Britain, which long resisted such a law, has now enacted one. Mexico also adopted such a measure in 2000.
During the early twenty-first century, there still were places around the world where the press was not free, where citizens could not impart or receive information freely, and where there virtually were no checks on government. In addition, the impact of terrorist attacks on established democracies was a potential threat to press freedom. Even so, the long-run trend seems to favor the expansion of press freedom.
See also: Censorship; Freedom of Expression; Freedom of Information; International Covenant on Civil and Political Rights; Universal Declaration of Human Rights.
American Convention on Human Rights, 1978.
Karlekar, Karin Deutsch, ed. Freedom of the Press 2003: A Global Survey of Media Independence. Lanham, MD: Rowman & Littlefield Publishers Inc., 2003.
Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, 1985.
Powe, Lucas A. Jr. The Fourth Estate and the Constitution: Freedom of the Press in America. Berkeley: University of California Press, 1991.
Reporters without Borders.<http://www.rsf.org/>.
"Russian President Putin Pledges Free Speech and a Free Press." Freedomforum.org, May 18, 2001. <http://www.freedomforum.org/templates/document.asp?documentID=13957>.
Siebert, Fredrick Seaton. Freedom of the Press in England, 1476–1776: The Rise and Decline of Government Controls. Urbana: University of Illinois Press, 1965.
Sussman, Leonard R. "Press Freedom, the Past Quarter Century: The Vile and the Valiant." In Freedom of the Press 2003. Edited by Karin D. Karlekar. Lanham, MD: Rowman & Littlefield, 2003.
United Nations Commissioner for Human Rights. <http://www.ohchr.org/english/>.
Freedom of the Press
FREEDOM OF THE PRESS
The First Amendment says "Congress shall make no law . . . abridging the freedom . . . of the press." Under the Due Process Clause of the Fourteenth Amendment, states also must recognize freedom of the press.
When the United States adopted the First Amendment in 1791, the press meant printed books, newspapers, and pamphlets, also called handbills. With advances in technology, the press came to include the broadcast media of radio and television. In the 1990s the Internet expanded the press to include computer-based publications.
The freedom of the press protects the right to publish information and to express ideas in these various media. It is an important right in a free society. To make sure government is running properly, citizens need to be informed. People do not have the time or ability to watch everything the government does. The press serves this function by investigating and reporting on the government's activity. If the citizens do not like what they see, they can remove politicians from office and elect new ones to do a better job.
In 1787 future president Thomas Jefferson made the following remark about the importance of the freedom of the press: "Were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate for a moment to prefer the latter."
History of free press concerns
The United States adopted freedom of the press in reaction to the press's history in England and the American colonies. Even before the German Johannes Gutenberg invented the printing press in the fifteenth century, government and church leaders in England regularly banned handwritten books that threatened their power. After the invention of the printing press, the English government required printers to get a license from a government or church official before publishing anything. By the mid-sixteenth century, anyone found with a book that criticized the British government could be executed.
In 1585 Queen Elizabeth I of England created a new set of laws to control the press in her country. Printing could occur only at approved presses in Oxford, Cambridge, and London. All material to be printed had to be approved beforehand by the Archbishop of Canterbury or the Bishop of London. Violators faced imprisonment or destruction of their printing equipment. Although these laws expired in 1695, the British government continued to enforce laws against sedition. These laws prevented anyone from printing something that criticized the government, even if it was true.
Printing was introduced in the American colonies in 1639 in Cambridge, Massachusetts. By 1765 more than thirty newspapers were printed in the colonies. The press, however, faced controls similar to those in England. Many colonies had censorship laws controlling what could be published. They also had sedition laws to punish people for speaking against the government. In 1765 the British government passed the Stamp Act, which placed a tax on colonial newspapers. When the United States adopted the First Amendment in 1791, it was trying to prevent all of these practices from controlling the press in America.
Avoiding government censorship
Americans especially did not want the government to have censorship power, which is the power to control what is published. Censorship is sometimes called "prior restraint" because it keeps a publication from being printed. In the case of Near v. Minnesota (1931), the U.S. Supreme Court officially ruled that the First Amendment prohibits the government from using prior restraints. In Grosjean v. American Press Co. (1936), the Supreme Court also outlawed taxes that apply only to the press and not to businesses generally. Such taxes act as a form of prior restraint by making it more difficult for the press to report the news.
The Supreme Court, however, has recognized a number of exceptions to the rule against prior restraints. The government may ban the printing of obscene material, which is sexual material that is offensive. The Supreme Court says obscenity is not protected by the First Amendment because it has no value in the flow of information in society.
The government also may ban the publication of material that would harm national security. For example, the government may prevent people from printing material to start a violent revolution. During wartime, the government may prevent publishers from revealing information such as the location of U.S. troops and their battle plans.
In New York Times Co. v. United States (1971), however, the Supreme Court ruled that the federal government could not prevent newspapers from printing a report about the United States's involvement in the Vietnam War (1954-1975). Although the report would embarrass the federal government, the Court said printing the report would not harm national security enough to merit stopping the presses. It was an important case that strengthened the rule against censorship and prior restraints.
Punishment for publishing
Freedom of the press also limits the government's power to punish people after they publish something. As noted earlier, England and the American colonies had sedition laws that punished people for criticizing the government, even truthfully. The First Amendment was designed to prevent such laws.
However, Congress passed a Sedition Act in 1798. It prohibited anybody from speaking against the government. Many Democratic-Republican newspaper editors were convicted under the Sedition Act. (The Democratic-Republican Party, which has since become known simply as the Democratic Party, was opposed to the Federalist Party, which was more powerful at the time.) When Democratic-Republican President Thomas Jefferson took office in 1801, he pardoned, meaning excused, the violators, and the unpopular law expired. Since then, the Supreme Court has said sedition laws like the Sedition Act of 1798 would violate freedom of the press.
The press, however, can be forced to pay damages when it commits libel. Libel is publishing false information that harms a person's reputation. The U.S. Supreme Court has created two sets of rules concerning libel laws, one for public figures and the other for private individuals.
Public figures are people who are well-known to the general population, such as celebrities, or who are involved in public business, such as politicians. In New York Times Company v. Sullivan (1964), the Supreme Court said that one of the press's most important functions is to report about public figures. The Court said libel laws might prevent the press from publishing important information for fear that it might be untrue. So the Supreme Court decided that public figures can sue for libel only when the press knows that it is printing untrue material. If the press prints false information by accident, public figures cannot sue.
Private individuals are different. They are people who are not known to the public. The public does not have a great interest in learning about private individuals, so the press does not need as much protection when reporting about them. In Gertz v. Robert Welch, Inc. (1974), the Supreme Court said that when the press prints an untrue statement about a private individual, the person can sue for libel even if the press did not know the material was untrue. The individual only must prove that the press was negligent, meaning careless, when it printed the false information.
Freedom to gather news
As shown above, the First Amendment protects the press's right to report the news. To report the news, however, the press must be able to investigate and gather it. Many Supreme Court cases involve news gathering.
Branzburg v. Hayes (1972) concerned some news reporters, called journalists, who interviewed drug users and gang members to write stories for their newspaper. The journalists promised not to reveal the names of the people they interviewed. The government, however, wanted the journalists to reveal the names to grand juries that were investigating criminal activity. (A grand jury is a group of people who decide whether the government has enough evidence to charge somebody with a crime.)
The journalists refused. They said freedom of the press gives them the privilege, or right, to keep secrets when they learn things while gathering the news. Without such a privilege, the journalists said they would not be able to get people to talk to them, and so would not be able to gather and report the news. The Supreme Court rejected this argument. It ruled that when journalists have knowledge of criminal activity, they must share it with grand juries just like every other citizen.
Criminal trials also create news gathering problems. The Sixth Amendment to the U.S. Constitution says criminal defendants have a right to a fair trial. Under the First Amendment, however, the press has a right to report criminal trials to inform the public about them. In some cases, the press's coverage of a trial can be so great that it hurts the defendant's Sixth Amendment right to a fair trial. For example, if people who are going to serve on the jury hear about the case from the press, they might make up their minds about whether the defendant is guilty before hearing the case as a juror. That would be unfair to the defendant.
Nebraska Press Association v. Stuart (1976) involved a criminal trial that was getting a lot of press coverage. To protect the defendant's right to a fair trial, the trial judge issued a "gag order." The order prevented the press from reporting about the trial. The press appealed the order all the way to the U.S. Supreme Court. This time the journalists won. The Supreme Court decided that a "gag order" is a prior restraint that violates the freedom of the press. The Court said there are many ways trial judges can protect the right to a fair trial without violating the freedom of the press. For example, judges can transfer trials to other communities, postpone trials until press coverage slows down, and be careful to select jurors who have not already made up their minds from listening to the press.
Television also has created news gathering issues. Do television reporters have a right to attend criminal trials and to televise them to the public? In Richmond Newspapers, Inc. v. Virginia (1980), the Court ruled that reporters do have a right to attend criminal trials. In Chandler v. Florida (1981), it said trial judges may allow reporters to televise trials if they make sure it does not interfere with the defendant's right to a fair trial. Because of this, the public sometimes gets to watch important trials on television as they happen.
Suggestions for further reading
Evans, J. Edward. Freedom of the Press. Minneapolis, MN: Lerner Publications Company, 1990.
Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.
Goldman, David J. The Freedom of the Press in America. Minneapolis, MN: Lerner Publications Company, 1967.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.
Schwartz, Bernard. Freedom of the Press. New York, NY: Facts on File, 1992.
Steins, Richard. Censorship: How Does It Conflict with Freedom? New York, NY: Twenty-First Century Books, 1995.
Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.
Zerman, Melvyn B. Taking on the Press: Constitutional Rights in Conflict. New York, NY: Crowell, 1986.
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.
"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.
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.
Freedom of the Press
Freedom of the Press
The right, guaranteed by the First Amendment to the U.S. Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from prior restraints on publication and freedom from censorship.
The New York Times Company v. Gonzales
Though journalists believe they have the First Amendment right to protect their confidential sources, the courts have made clear that in certain circumstances reporters must surrender this information. The courts are particularly reluctant to deny prosecutors access to press records when serious crimes are under investigation. This reluctance was expressed again in The New York Times Company v. Gonzales, 459 F.3d 160 (2nd Cir. 2006), where the Second Circuit Court of Appeals ruled that reporters' telephone records that are in the hands of telephone providers could be subpoenaed by a federal prosecutor. The court held that the First Amendment's guarantee of freedom of the press did not protect these records because the reporters may have obstructed justice.
Chicago U.S. Attorney Patrick Fitzgerald empanelled a grand jury to investigate how two New York Times reporters obtained information about the government's plan to freeze the assets and search the offices of Holy Land Foundation (HLF) and Global Relief Foundation (GRF) on December 4 and 14, 2001, respectively. Fitzgerald also wanted to know why the reporters, Judith Miller and Philip Shenon, disclosed this information to the two foundations by seeking comment from them ahead of the search. The government suspected the foundations of terrorist activities in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. Because of the reporters' disclosures the government alleged that its investigation was compromised. In addition, Fitzgerald noted that no government agent was authorized to disclose this information prior to the execution of the searches. Such an unauthorized disclosure can subject a government agent to prosecution for obstruction of justice.
Judith Miller published a story on October 1, 2001 that stated the government was considering adding GRF to a list of organizations with suspected ties to terrorism. Miller later acknowledged that she received this information from confidential sources. On December 3, 2001 Miller called an HLF representative for comment on the government's intent to freeze HLF's assets. The next day the government searched the HLF offices. The government alleged that Miller's call put HLF on notice that a search was imminent and that HLF took actions to reduce the effectiveness of the search.
Philip Shenon contacted GRF on December 13, 2001 seeking comment on the government's apparent intent to freeze its assets. The next day government agents searched the GRF offices. Fitzgerald later stated the GRF acted with alarm to Shenon's tip and took certain actions before the search. When agents entered the offices to begin the search it was apparent that GRF employees were expecting them and had sufficient time to remove items.
Fitzgerald then began his investigation into who leaked the information to the reporters. In August 2002 he wrote New York Times, requesting a voluntary interview with Shenon and voluntary production of Shenon's telephone records for one week in late September and one week in December. In his letter Fitzgerald told the newspaper that the leaks may have compromised national security and hurt the government's attempts to investigate terrorist organizations. The newspaper refused the requests. Fitzgerald renewed his requests in July 2004 and enlarged it, asking for Miller's phone records from the pertinent times in 2001. The Times again refused and eventually filed a suit in New York federal district court in September 24, asking for a declaratory judgment that the reporters' telephone records could not be subpoenaed by Fitzgerald because of the First Amendment. The district court ruled in favor of the Times. The government then appealed to the Second Circuit Court of Appeals.
The three-judge panel ruled 2-1 in favor of the government's right to subpoena the telephone records. Judge Ralph Winter, writing for the majority, agreed with the newspaper that under Second Circuit precedent the government does not have an absolute right to subpoena third-party providers of phone records. If the third party plays an "integral role" in reporters' work and the reporters are granted the privilege of not disclosing confidential sources, then the third party's information is privileged. Therefore the key issue was whether Miller and Shenon could successfully assert such a privilege. Judge Winter concluded that the reporters did not have a common law or First Amendment privilege to withhold information. The government had a "compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence." Apart from the importance of maintaining secrecy was "a set of facts—informing the targets of those impending actions—that may constitute a serious obstruction of justice." A grand jury would not be able to pursue the investigation further without the reporters' evidence. Freedom of the press was in no danger because the leaking of imminent law enforcement searches and freezes and informing the targets of these actions "is not an actively essential, or even common, to journalism." In addition, the grand jury was not seeking the testimony of the two reporters.