The First Amendment to the US Constitution declares in part that “Congress shall make no law … abridging the freedom of speech, or of the press.” The amendment was uncontroversial and was adopted and ratified without debate in the First Congress and then the states. One possible interpretation of the First Amendment is that it incorporated the common law as set out in William Blackstone's Commentaries on the Laws of England ( 1765–1769 ): “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published” (Bk. 4, chap. 11). Essentially, people can publish anything they wish, but if the publication transgresses some law, they will face the consequences.
Another possible interpretation is that the amendment provides some protections against seditious libel— that is, hostile criticism of government—by making either truth and good motives or simply truth a defense. The least likely interpretation is that the First Amendment means exactly what it says, and the press has immunity for whatever is published.
Since 1964, US Supreme Court decisions have come remarkably close to complete protection when the publication concerns public issues. As Justice Potter Stewart ( 1915–1985 ) explained in the Pentagon Papers Cases (New York Times v. United States), 403 U.S. 713 ( 1971 ): “The press was to serve the governed, not the governors. [It] 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” (403 U.S. at 717). Going beyond reporting on government, the Court has also been reluctant to penalize publications. The media, whether liberal, conservative, or neutral, agree. Decisions supporting a First Amendment claim are always applauded; those denying a claim denounced.
The ban on prior restraints—basically judicial injunctions— was tested when the New York Times (and then the Washington Post) began to publish parts of the forty-seven-volume Pentagon Papers about American involvement in Vietnam, which had been provided to the two newspapers by Daniel Ellsberg, a military analyst. Believing that if the American public knew what was in the papers they would turn against the war, Ellsberg copied them and gave fortythree volumes to a New York Times reporter. After studying them for months, the Times began to publish the papers in June 1971. The administration of President Richard Nixon ( 1913–1994
No Supreme Court case has ever been handled faster, and the reason for the speed was the existence of a prior restraint that the majority believed unconstitutional. While the technical reading of the Pentagon Papers Cases was that the government did not meet its burden of proof to overcome the presumption against prior restraints, the functional meaning of the case was that government could never meet that burden. With the development of the Internet and instantaneous publishing, the ability to seek a prior restraint has been rendered completely moot.
New York Times v. Sullivan, 376 U.S. 254 ( 1964 ), has been the key press case for matters relating to libel. L. B. Sullivan, the police commissioner of Montgomery, Alabama, successfully sued the Times for libel in the Alabama courts, ultimately winning an award of $500,000, ten times higher than the next highest libel judgment in the state's history. The “libel” was an advertisement that ran in the Times tying Martin Luther King Jr. ( 1929–1968 ) to the then-recent sit-in demonstrators and the effort to register African American voters, with the point that King was integral to the “total struggle for freedom in the South.” The ad contained a couple of minor errors, such as mistaking “My Country, 'Tis of Thee” ' for the national anthem, and never mentioned Sullivan by name. Sullivan claimed that people reading the ad might think that southern police who engaged in brutality were his police. The Alabama law of libel withdrew the defense of good faith if all statements were not 100 percent true.
Three years later, in Associated Press v. Walker, 388 U.S. 130 ( 1967 ), the Court extended the reach of the case to encompass public figures. Subsequently, the Court completed its rewriting of the laws of libel by holding that a private individual must show that the material was false and published negligently, as well as prove actual injury ( Gertz v. Robert Welch, Inc., 418 U.S. 323  ). As a practical matter, investigative journalism can flourish because the Court made proving the publisher's culpability so difficult and because most libel plaintiffs do not suffer sufficient injury to justify the costs of suing. The use of the tort of intentional infliction of emotional distress as a substitute for libel was unanimously rejected in Hustler Magazine v. Falwell, 485 U.S. 46 ( 1988 ). The media is free to satirize, even viciously, public figures.
The status of the act of publishing legally acquired private information about private individuals has not been fully resolved. The Court has protected the media but has avoided making sweeping pronouncements on the issue. It appears that, absent a state interest of the highest order, it is unconstitutional to prohibit publication of truthful information about a matter of public concern if the information was acquired legally. An exception may becreated for what is known colloquially as “revenge porn,” whereby someone in possession of explicit photos of a former sexual partner publishes them or posts them on the Internet. It is likely that a statute banning the dissemination of such photos would be found constitutional because of the privacy issues involved, particularly if the photos were taken by another and were posted with intent to cause serious distress. However, if the person appearing in the photos voluntarily gave them away, there is some claim of assumption of the risk. The issue remained unresolved as of 2014.
The media has been equally successful in avoiding liability for the dissemination of information that is overwhelmingly likely to facilitate criminal behavior. Bran-denburg v. Ohio, 395 U.S. 444 ( 1969 ), held that speakers can only be held responsible for illegal activity when they incite imminent lawless action. The Brandenburg test forecloses liability because the media are not in the business of inciting anything.
One issue where the law applies differently to different media is the treatment of sexual expression. Magazines faced obscenity issues prior to the 1980s, but with the advent of home videocassette recorders (VCRs) in the 1970s, obscenity as a legal issue vanished (with the continuing exception of prosecutions for possession of pornography involving children). The Internet then made the ability to access sexual expression as easy as a few clicks. Under the guise of protecting children, Congress attempted to control even adult access to sexual materials on the Internet, but in Reno v. ACLU, 521 U.S. 844 ( 1997 ), the Supreme Court struck down the law. Similarly, the Court rejected an attempt to regulate sexual content on cable television channels.
Over-the-air radio and television stations are subject to Federal Communications Commission (FCC) sanctions if they, at any time, air the type of sexual programming that commonly airs at night on some cable channels. Furthermore, programming on over-the-air stations is limited by FCC rules that bar “indecency,” however limited, except during a “safe harbor” between 10 PM and 6 AM. The indecency rules would be unconstitutional if applied to any other media, but such rules have been justified by the legal notion that an over-the-air station is, in effect, an intruder in the home when it airs indecent programming ( FCC v. Pacifica Foundation, 438 U.S. 726  ).
Over-the-air stations are also treated differently from other media with respect to how much they can charge for political advertising and their inability to reject such advertising during an election campaign. Until 1987, over-the-air stations were also subject to the “fairness doctrine,” with the result that their coverage of politics and controversy was decidedly tamer than that of their print competitors, which, like individuals, could never be forced to publish anything they did not wish to print ( Miami Herald v. Tornillo, 418 U.S. 241  ).
James Madison ( 1751–1836 ) believed that a “popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy” ( Madison 1910, 9:103 ). Justice John Paul Stevens added that “without some protection for the acquisition of information about the operation of public institutions … the process of self-government contemplated by the Framers would be stripped of its substance” ( Houchins v. KQED, 438 U.S. 1, 32  ). Often the acquisition of information about questionable government actions depends on a source within the government—that is, a leaker—willing to provide it.
In the summer of 2013, one such leaker, Edward Snowden, released a cascade of information about various hitherto unknown government programs to collect data on American citizens. Without this information, it would have been impossible for Americans to fully debate the scope of government surveillance of American citizens. Other famous leakers include William Colby ( 1920–1996 ), head of the Central Intelligence Agency from 1973 to 1976, and Justice Potter Stewart ( 1915–1985 ), both of whom provided key information to reporter Bob Woodward. The need for information also applies to reporting about individuals and groups that are violating the law or perhaps contemplating political violence.
After the Pentagon Papers Cases, the government ascertained that Ellsberg was the leaker and indicted him. The case was dismissed because of government misconduct, but the court opinions expressed no doubt that the leaker did not have a constitutional right to leak classified information. Significantly, the government did not try to indict anyone at the New York Times or Washington Post, and it is doubtful that a criminal action against the press would have withstood constitutional scrutiny. On the other hand, while it has been rare that leakers have been prosecuted, there is no bar to doing so, assuming the government can determine who the leaker is. Often, however, the leaker is known only to the reporter who writes the story.
In 1972, the Court ruled in Branzburg v. Hayes, 408 U.S. 665, that reporters can be ordered in some cases to identify their sources, and they can be jailed for contempt if they do not do so. Every American, even a sitting president, is required by law to provide information requested by a grand jury, and in Branzburg the Court rejected the First Amendment claims of the press. Indeed, there is no “press clause” protecting the press specifically, and all the cases discussed above were treated as “expression” cases. Even in 1972 there were concerns about who should be considered a reporter or a member of the press. The Internet makes such questions exponentially more difficult to answer. Some states, but not the federal government, have passed laws that shield reporters against the forced divulging of sources, and virtually all governments have passed freedom-of-information acts that provide a statutory means of acquiring some information about the government.
In the 1970s, Justice Stewart noted that the “press is free to do battle against secrecy and deception in government. But the press cannot expect from the Constitution any guarantee that it will succeed…. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act” ( Stewart 1975, 636 ). That remains an accurate observation. As a society, America has opted for a diversity of information instead of any method of authoritative selection.
SEE ALSO Fairness Doctrine ; Freedom of Speech ; Freedom of the Press ; New York Times v. United States ; Prior Restraint ; US Bill of Rights .
Bezanson, Randall. How Free Can the Press Be? Urbana: University of Illinois Press, 2003.
Franklin, Marc A., David A. Anderson, and Lyrissa Barnett Lidsky. Mass Media Law: Cases and Materials. 8th ed. New York: Foundation Press, 2011.
Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.
Lucas A. Powe, Jr. The Fourth Estate and the Constitution: Freedom of the Press in America. Berkeley: University of California Press, 1991.
Madison, James. “To W. T. Barry” (August 4, 1822). In The Writings of James Madison, edited by Gaillard Hunt, Vol. 9: 1819–1836, 103–9. New York: Putnam's, 1910.
Stewart, Potter. “Or of the Press.” Hastings Law Journal 26 (1975): 631–37.
L. A. Powe Jr.
University of Texas