Freedom of the Press (West's Encyclopedia of American Law)
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 First Amendment to the U.S. Constitution reads, in part, "Congress shall make no lawabridging 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...
(The entire section is 1297 words.)
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Freedom of the Press (Great American Court Cases)
At the time the Constitution was written, the term "press" referred to the printing of newspapers, books, and leaflets. However, with the advance of technology through time a much broader application has evolved involving the broadcast media, such as radio and television, and online computer information systems. Specific reference to press in the Constitution was an acknowledgment of the critical role the press played in early American society. Though press was mentioned separately from speech in the First Amendment, the two terms became essentially coequal. Initially, the press referred to the institutional press, which some considered to deserve greater freedoms from government regulation than other forms of publication. However, recognition grew that every citizen had a right to publish what sentiments they pleased before the public. Thus, press became steadily broadened until the 1990s when the concept of "publishing" itself became challenged by new online technologies.
The Origins of Free Press Concerns
The printing of thoughts and ideas began thousands of years ago with the carving of designs into wet clay. Though paper was invented in China in the twelfth century, modern printing did not begin until about 500 years ago. In response to the Renaissance interest in learning, German Johannes Guttenberg pioneered the use of...
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Freedom of the Press (Supreme Court Drama)
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.