“Congress shall make no law . . . or abridging the freedom of speech, or of the press; . . . “
The First Amendment, which protects freedom of the press, was adopted on December 15, 1791, as part of the Bill of Rights.
The origin of freedom of the press can be traced back to “Cato’s letters” – a collection of essays criticizing the British political system and were widely read across the pre-Revolutionary colonies.
The authors of the Cato letters were British and they were written between 1720 and 1723. Their consistent theme was to highlight corruption and tyranny in the British government, and this theme was frequently a source of revolutionary political ideas for articles in newspapers in the American colonies.
Freedom of the press is the right to report news or circulate opinion without censorship from the government.
Virginia was the first state to formally protect the press in the 1776 Virginia Declaration of Rights which stated, “The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.”
Before the thirteen colonies declared independence from Great Britain, the British government attempted to censor the American media by prohibiting newspapers from publishing unfavorable information and opinions.
One of the first court cases involving freedom of the press in America took place in 1734. British governor William Cosby brought a libel case against the publisher of The New York Weekly Journal, John Peter Zenger, for publishing commentary critical of Cosby’s government. Zenger was acquitted.
During the past 230+ years, the courts have handed down significant decisions pertaining to the freedom of the press. Among these are:
- Near v. Minnesota (1931) – This case helped the Supreme Court define freedom of the press and the concept of prior restraint. This case helped establish the principle that the government can’t censor or prohibit a publication in advance, with a few exceptions, even though the communication might be actionable in a future proceeding.
- Nebraska Press Association v. Stuart (1976) – This was a prior restraint case. While presiding over a widely publicized murder trial, a Nebraska state trial judge kept reporters from publishing or broadcasting accounts of confessions made by the accused to the police. The Supreme Court, however, found that the judge’s order violated the First and Fourteenth amendments. The court felt that implementing prior restraint wouldn’t affect the trial’s outcome. Chief Justice Warren Burger reasoned that the “whole community should not be restrained from discussing a subject intimately affecting life within,” thus protecting the press’ responsibility to provide information of public interest
- Hazelwood School District v. Kuhlmeier (1988) – Are high school students protected by freedom of speech? When Hazelwood East High School principal Robert E. Reynolds thumbed through the proofs of the Spectrum, the school paper, and found two articles to be inappropriate, he barred them from publication. The Supreme Court held that schools must be able to set high standards for speech disseminated under their supervision, and that schools had the right to refuse to support speech that was “inconsistent with the shared valued of civilized social order.” The Court said the educators didn’t offend the students’ First Amendment rights, as long as their actions were “reasonably related to legitimate pedagogical concerns.”
- Branzburg v. Hayes (1971) – Should reporters be forced to share confidential information? The question posed to the Supreme Court: Does forcing a reporter to testify before a grand jury violate his or her freedoms of speech and press? The Supreme Court found that this so-called reporter’s privilege doesn’t apply if a reporter’s confidential information was of a “compelling” and “paramount” state interest, couldn’t be obtained any other way, and contained specific information about specific crimes. Simply put, forcing a reporter to testify before a grand jury won’t violate that reporter’s first amendment rights.
- Cohen v. Cowles Media Co. (1982) – The Supreme Court tackled the question of whether the First Amendment bars a source from recovering damages if a newspaper doesn’t it fulfill its promise of confidentiality. It decided that the First Amendment doesn’t prevent a promissory estoppel suit against the press, ruling that Minnesota’s promissory estoppel law applied to individuals or institutions. In this case, the First Amendment didn’t protect the press from breaking a promise to its sources.
- Chandler v. Florida (1981) – Ever wonder why judges allow cameras in courtrooms? In this case the question was if cameras in the courtroom would deny the defendants a fair trial under the 6th and 14th Amendments. The Supreme Court ruled in favor of cameras. This case helped clear the way for live courtroom TV shows, as well as the famous live coverage of the O.J Simpson and Rodney King trials.
- New York Times Co. v. Sullivan (1964) – The challenge before the Court: Did a state’s libel law infringe on the First Amendment’s freedom of speech and press protection? The Court held that the First Amendment protects the publication of all statements — even those later proven false — about the conduct of public officials unless they’re made with actual malice, or knowledge that they’re false or reckless. The Court dismissed Sullivan’s case and established that publicly elected officials must prove an actual intent to harm in cases of libel or defamation.
- Curtis Publishing v. Butts (1966) – Another case regarding the application of the actual malice standard to public figures. In its 5-4 ruling, the Supreme Court agreed to extend the reach of the Sullivan verdict to include public figures like national politicians, business tycoons and celebrities. Chief Justice Earl Warren reasoned there was “no basis in law, logic, or First Amendment policy” to differentiate between public officials and public figures.
- Gertz vs. Robert Welch, Inc. (1974) – The publisher of a magazine published a magazine article that contained several factual misstatements about an attorney who represented a convicted murderer. The attorney sued for defamation and argued that because he was a private person – not a public figure – he only needed to show negligence or fault – not actual malice. The Supreme Court agreed that a private person doesn’t have to show actual malice in order to prove libel — even if the defamatory comments concern public issues. In this case, the Court set up a different standard for private individuals, saying that states themselves could define the appropriate standard of liability for a journalist who makes defamatory, false statements about a private individual.
- New York Times Co. vs. United States (1971) – This case was about the release of the Pentagon Papers. At the US Government’s request, the district court issued an injunction ordering the New York Times not to publish the documents because of national security.The Supreme Court ruled 6-3 in favor of the Times. In dissent, Chief Justice Warren Burger noted that the “imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex, modern government.” He challenged the wisdom of publishing the highly confidential intelligence, but respected the freedom offered by the First Amendment: “Only those who view the First Amendment as an absolute in all circumstances — a view I respect, but reject — can find such cases as these to be simple or easy.” This case is extremely important to journalists, as the court recognized the need to find a balance between the right to a free press and the need for the government to protect national security.
There have been notable cases regarding the electronic media.
The Federal Communications Commission (FCC) regulates interstate and foreign communications by radio, television, wire, satellite, and cable.
- FCC v. Pacifica Foundation, (1978) – The Supreme Court defined the scope of the FCC’s power with in relation to sanctioning television programs for airing certain content, such as vulgar language. The Court held that the FCC may censor television content, based on relevant factors such as time of day, the program’s overall content, the audience, the medium, and the method of transmission of the message.
- FCC v. Fox Television Stations, (2012) – The Supreme Court further defined FCC rules dealing with vulgar content on television programs. To determine which type of content is offensive, the FCC had a policy outlining 3 main factors:
(1) The explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities;
(2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities;
(3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.
The Supreme Court held that in order to actually enforce the policy, however, the FCC must give the networks fair warning, prior to the broadcasting of offensive content. Without warning networks of the policy, any enforcements are considered vague, and must be set aside. The Court, however, did not evaluate whether the actual policy violated the First Amendment, the Court only ruled regarding its enforcement.