Freedom of Press
Freedom of the press protects the right to obtain and publish
information or opinions without government censorship or fear of punishment.
Censorship occurs when the government examines publications and productions and
prohibits the use of material it finds offensive. Freedom of press applies to
all types of printed and broadcast material, including books, newspapers,
magazines, pamphlets, films and radio and television programs.
The Constitution's framers provided the press with broad freedom.
This freedom was considered necessary to the establishment of a strong,
independent press sometimes called "the fourth branch" of the
government. An independent press can provide citizens with a variety of
information and opinions on matters of public importance. However, freedom of
press sometimes collides with other rights, such as a defendant's right to a
fair trial or a citizen's right to privacy. In recent years, there has been
increasing concern about extremely aggressive journalism, including stories
about people's sexual lives and photographs of people when they were in a
private setting.
In the United States, the government may not prevent the
publication of a newspaper, even when there is reason to believe that it is
about to reveal information that will endanger our national security. By the
same token, the government cannot:
·
Pass a law
that requires newspapers to publish information against their will.
·
Impose
criminal penalties, or civil damages, on the publication of truthful
information about a matter of public concern or even on the dissemination of
false and damaging information about a public person except in rare instances.
·
Impose
taxes on the press that it does not levy on other businesses.
·
Compel
journalists to reveal, in most circumstances, the identities of their sources.
·
Prohibit
the press from attending judicial proceedings and thereafter informing the
public about them.
Collectively, this bundle of rights, largely developed by U.S.
Supreme Court decisions, defines the freedom of the press guaranteed by the First Amendment. What we
mean by the freedom of the press is, in fact, an evolving concept. It is a
concept that is informed by the
perceptions of those who crafted the press clause in an era of pamphlets,
political tracts and periodical newspapers, and by the views of Supreme Court
justices who have interpreted that clause over the past two centuries in a
world of daily newspapers, books, magazines, motion pictures, radio and
television broadcasts, and now Web sites and Internet postings.
The framers' conception of freedom of the press has been the
subject of intense historical debate, both among scholars and in the pages of
judicial opinions. At the very least, those who drafted and ratified the Bill
of Rights purported to embrace the notion, derived from William Blackstone,
that a free press may not be licensed by the sovereign, or otherwise restrained
in advance of publication (see New York Times Co. v. United States, 1971.)
And, although the subject remains a lively topic of academic debate, the
Supreme Court itself reviewed the historical record in 1964 in New York Times Co. v. Sullivan and concluded
that the central meaning of the First Amendment embraces as well a rejection
of the law of seditious libel i.e., the power of the sovereign to impose subsequent punishments, from
imprisonment to criminal fines to civil damages, on those who criticize the
state and its officials.
To a great extent, however, what we mean by freedom of the press
today was shaped in an extraordinary era of Supreme Court decision-making that
began with Sullivan and concluded in 1991 with Cohen v. Cowles Media Co. During that
remarkable period, the Court ruled in at least 40 cases involving the press and
fleshed out the skeleton of freedoms addressed only rarely in prior cases. In
contrast, although the Court in the early part of the last century had
considered the First Amendment claims of political dissidents with some
frequency, it took nearly 150 years after the adoption of the Bill of Rights,
and the First Amendment along with it, for the Court to issue its first
decision based squarely on the freedom of the press.
That 1931 case, Near v. Minnesota, ratified the Blackstonian
proposition that a prior restraint a legal prohibition on the
press s ability to publish information in its possession will almost always violate the First
Amendment. Near is a landmark, not just because it was the Court s first decision to invoke the press clause, but because it
established a fundamental precept of constitutional law that once the press has
gotten its hands on information that it
deems to be newsworthy, the government can seldom, if ever, prevent that
information from being published.
Over the course of the quarter-century following Sullivan,
the Court made it its business to explore the ramifications of the case on a
virtually annual basis. During that period, the Supreme Court s elaboration of what we mean by a free press focused on the nature
of the official restraint alleged to compromise that freedom as well as the
extent to which the First Amendment protects
the press from a given species of governmental action or inaction. Thus, in
cases such as Near and the Pentagon Papers case (1971's New York Times Co. v. United States, the Court established that freedom of the press from previous
restraints on publication is nearly absolute, encompassing the right to publish
information that a president concluded would harm the national security, if not
the movements of troopships at sea in time of war. In 1974's Miami Herald Publishing Co. v. Tornillo, the
Court embraced the analogous proposition that the government has virtually no
power to compel the press to publish that which it would prefer to leave on the
proverbial cutting room floor.
In that regard, however, it must be noted that not all media are created
equal when it comes to entitlement
to the full protections of the First Amendment s press clause. Most significantly, because of a perceived scarcity of the electromagnetic spectrum, the Court has held that Congress and the Federal
Communications Commission may regulate the activities of broadcasters operating
over public airwaves in a manner that
would surely violate the First Amendment if applied to newspapers. (Compare Red Lion Broadcasting v. FCC (1969) with Tornillo.)
The Court s reasoning in Red Lion, in which
it upheld the Commission s Fairness
Doctrine and personal attack rule i.e., the right of a person criticized on a
broadcast station to respond to such criticism over the same airwaves licensed
to that station has never been disavowed,
although the justices have expressly declined to extend it to other,
later-developed communications media,
including cable television (1994's Turner Broadcasting v. FCC) and the Internet
(1997's Reno v. ACLU), to which the scarcity rationale for regulation is
plainly inapplicable.
Even in the broadcast context, however, Sullivan and the
cases that followed it stand for the proposition that the First Amendment
protects the publication of truthful information about matters of public
concern, not just from prior restraint, but also from subsequent punishment, at
least in the absence of a demonstrated need to vindicate a competing government
interest of the highest order. This formulation has come to be known as the Daily Mail
principle, after the Supreme Court s 1979 decision in Smith v. Daily Mail Publishing Co., in which the Court held that a newspaper could not be liable for
publishing the name of a juvenile offender in violation of a West Virginia law
declaring such information to be private. The protections against subsequent
punishments for reporting the truth afforded by the Daily Mail principle
are not absolute, but the barriers to such government regulation of the press
are set extremely high.
Sullivan and cases that followed also
hold that the First Amendment protects the publication of false
information about matters of public concern in a variety of contexts, although
with considerably less vigor than it does dissemination of the truth. Even so,
public officials and public figures may not recover civil damages for injury to
their reputations unless they were the victims of a reckless disregard for
truth in the dissemination of a calculated falsehood. Indeed, private persons may not collect civil
damages for reputational harm caused by falsehoods relating to a matter of
public concern unless the publisher s conduct
violates a fault-based standard of
care. And although expressions of opinion are not always immune from legal sanction, in
its 1990 decision in Milkovich v. Lorain Journal Co., the Court held that statements not capable of being proven false,
or which reasonable people would not construe as statements of fact at all, but
rather as mere rhetorical hyperbole, are absolutely protected by the First
Amendment.
By the same token, the Supreme Court has been considerably less
definitive in articulating the degree of First Amendment protection to be
afforded against restraints on the freedom of the press that are indirect and
more subtle than the issuance of a prior restraint or the imposition of
criminal or civil sanctions subsequent to publication. Thus, for example, in
its 1978 decision Zurcher v. Stanford Daily, the Court held
that the First Amendment does not protect the press and its newsrooms from the
issuance of otherwise valid search warrants. Similarly, in 1979 in Herbert v. Lando, the Court concluded that
the press clause does not encompass a privilege that would empower a journalist
to decline to testify about the editorial process in civil discovery. Most significantly, in
1972 in Branzburg v. Hayes, a sharply divided Court was skeptical of the contention that the
First Amendment protects journalists from the compelled disclosure of the
identities of their confidential sources, at least in the context of a
grand-jury proceeding. The Court, however, has not addressed that issue in the
30 years since Branzburg, and has effectively permitted the lower courts
to fashion an impressive body of law grounding just such a reporter s privilege firmly in the press clause itself. That privilege, however, is by no means absolute and may be
forfeited in a variety of circumstances, especially when no confidential source
is thereby placed in jeopardy or when disclosure is sought in the context of a
grand-jury or other criminal proceeding.
And, finally, the Court has held that the First Amendment affords
the press and public affirmative rights of access to at least some government
proceedings. In a series of decisions beginning with 1980's Richmond Newspapers, Inc. v. Virginia, the
Court established that the First Amendment not only protects the press from
prior restraints and other government-imposed penalties, but also invests the
press and public with a right to attend criminal trials and other judicial
proceedings. This right, however, is not absolute and is routinely balanced
against other competing interests articulated by the proponents of secret
proceedings. Nevertheless, in such cases, and others like 1975's Cox Broadcasting Corp. v. Cohn, the Court has
expressly recognized the structural role that the press plays as a surrogate for the larger public in
gathering and disseminating information on its behalf and for its benefit.
Significantly, however, the Court has taken great pains not to anoint
the press with First Amendment-based rights and immunities beyond those enjoyed
by any speaker, lonely pamphleteer (see Branzburg
v. Hayes, 1972), or Internet chat-room participant.
Indeed, the Court has rejected arguments advanced by the
institutional press that, because of its structural role in ensuring the free
flow of information in a democratic society, it ought to enjoy unique
protections from otherwise generally applicable laws that inhibit its ability
to gather and report the news. Thus, in 1991 in Cohen v. Cowles Media Co.,
the Court effectively concluded the treatise on the freedom of the press it
began in Sullivan; it did so when it emphasized that the press is
properly subject to liability under the generally applicable law of contracts when it breaks a promise to
keep a source s identity confidential, even
when it does so in order to report truthful information about the source s
involvement in a matter of public concern.
In the decade following Cohen, the Court again fell largely
silent when it came to the First Amendment s
application to the institutional press. As the 21st century dawned, however,
the Court interrupted that silence,
at least briefly, to revisit the extent to which a generally
applicable law such as the federal wiretap statute can
constitutionally impose criminal penalties and civil liability on the
dissemination by the press of the contents of
unlawfully recorded telephone conversations, at least when the information so
disseminated is the truth about a matter of public concern.
In 2001 in Bartnicki v. Vopper, the Court held that,
even when a statute is directed at deterring unlawful conduct (e.g., the
interception of telephone conversations) and not at penalizing the content of
press reports, it nevertheless constitutes a naked
prohibition on the dissemination of information by the press that is fairly
characterized as a regulation of pure speech in violation of the First
Amendment. In so holding, the Court ushered in a new century of First Amendment
jurisprudence by reaffirming both the Daily Mail principle the fundamental right of a
free press to disseminate truthful information about public matters and the central meaning of the First Amendment on which it is based Sullivan s recognition that the freedom of expression upon public questions is secured by the First Amendment so that debate on
public issues should be uninhibited, robust and wide-open.
While it is undeniable fact that freedom of press is essential
ingredient of democracy, it does not mean it will advance the goals of
democracy.
Namely, once in this
country that now seems far away, radio and television broadcasters had an
obligation to operate in the public interest. That generally accepted principle
was reflected in a rule known as the Fairness Doctrine. The rule, formally
adopted by the Federal Communications Commission in 1949, required all
broadcasters to devote a reasonable amount of time to the discussion of
controversial matters of public interest. It further required broadcasters to
air contrasting points of view regarding those matters. The Fairness Doctrine
arose from the idea imbedded in the First Amendment that the wide dissemination
of information from diverse and even antagonistic sources is essential to the
public welfare and to a healthy democracy.
In August 1987 the FCC repealed the Doctrine, claiming that it was
unconstitutional, although the Supreme Court had ruled unanimously in 1969 that
the Fairness Doctrine was not only constitutional but essential to democracy.
As a result, general public is very rarely served with fair and balanced
information. The public airwaves serve today no other purpose but to express
the opinions of those who can pay for air time. Some authors argue that
mainstream media journalism today is a shameful joke because of president
Reagan's decision to abolish Fairness Doctrine. Once upon a time, the Fairness
Doctrine ensured that the information we receive - information vital to the
ability of the people to govern in the manner intended - came from a wide
variety of sources and perspectives. Reagan's policies annihilated the Fairness
Doctrine, opening the door for a few mega-corporations to gather journalism
unto themselves. Today, Reagan's old bosses at General Electric own three of
the most-watched news channels. This company profits from every war Americans
fight, but somehow is trusted to tell the truths of war. Thus, the myths and
lies are sold to us.
