Freedom of the Press

The Press
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 presswas mentioned separately from speech in the First Amendment, the two terms became essentially coequal. Initially, the press referred to the institutionalpress, which some considered to deserve greater freedoms from government regulation than other forms of publication. However, recognition grew that everycitizen 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 movable type and began the printing of books. However, even before there was a press and printing, rulers and church leaders commonly restricted the writing and distribution of certain material. Written by hand, books considered contrary to church teachings or a threat to social order were banned or burned.
Shortly after the introduction of printing in the fifteenth century, early printers were required to obtain a license from the government or a religious group to publish material. By the mid sixteenth century, anyone in England found with unapproved books critical of the government could face execution. In1585 Queen Elizabeth created new regulations concerning the printing of books. Printing could only occur at presses in Oxford, Cambridge, and London and all materials to be printed required approval beforehand by the Archbishop ofCanterbury or the Bishop of London. Imprisonment and destruction of the printing equipment was punishment for any violations. English control of the presscontinued into the seventeenth century as part of common law recognizing theright of government to impose criminal penalties on those maliciously criticizing the government, known as the "sedition libel doctrine." By the mid-seventeenth century, arguments against licensing mounted and by 1700 freedom fromcensorship grew as a recognized natural right, free of prior restraints butnot absolute freedom from punishment after publication.
Printing was introduced in the American colonies in 1639 in Cambridge, Massachusetts and rapidly spread but under strict controls. In 1735, the trial of colonist newspaper publisher John Peter Zenger, charged with criticizing the British government, attracted widespread attention. By 1765, over 30 newspapers were published in the colonies. After conclusion of war with France in 1763, Britain decided to tighten its control on the colonies and station troops in America. To finance the expense, the British Parliament in 1765 passed theStamp Act placing a tax on newspapers. The act, the first of several unpopular tax measures imposed by Britain in the decade between 1765 and 1775, helpedforge colonial opposition to British rule and directly led to the Revolutionary War.
The framers of the Constitution viewed freedom of press as a key means of ensuring participatory democracy. Freedom of speech and religion would become meaningless without the freedom to publish such thoughts. Thus, the right to publish freely served as a protection of other constitutional freedoms, a watchdog over threats to the other rights. The Constitution was written to expressthat "Congress shall make no law...abridging the freedom...of the press." However, few details were provided about how to apply the press clause. It hadbeen generally accepted that any form of government censorship, or prior restraint, was prohibited. Punishment of published material, such as seditious libel, was allowed with recognition that to preserve peace and order, abuses bypeople of their freedom must be addressed in some manner.
The Press and Prior Restraints
Throughout history the most severe restrictions placed on the press has occurred during times of social stress, particularly during wars. The first restrictions by Congress on the press was through the Sedition Act of 1798, based on English common law, which prohibited malicious criticism of the governmentor government officials. Several editors were tried and convicted before thehighly controversial law was allowed to expire in 1801. The convictions weresubsequently pardoned and no legal challenges resulted. The Civil War in theearly 1860s also brought press censorship through martial law. Again, no legal cases resulted. World War I brought a new set of federal and state seditionlaws. Several newspaper editors were convicted under the laws and legal challenges this time did result. The Supreme Court uniformly rejected freedom ofthe press claims. Importantly among these rulings was the finding in Gitlow v. New York (1925) that First Amendment press protections applied to state laws as well as federal in the form of personal rights and liberties protected by the due process clause of the Fourteenth Amendment. In another of the sedition cases Justice Oliver Wendell Holmes established the "marketplace of ideas" metaphor which proved influential in supporting press freedoms throughout the twentieth century.
As with speech, the government has restricted the press through both prior restraints and through punishment after publication. Prior restraints have taken the form of censorship, taxation, and licensing. Punishment has been applied to publishers deliberately printing false and defamatory material about public and private individuals. Several aspects of press freedom were addressedby the courts since the World War I era sedition cases.
A prior restraint doctrine was first elaborated by the Supreme Court in the 1931 Near v. Minnesota ruling. The Court for the first time struck downa state law as an unconstitutional prior restraint on the press. The Court identified four situations where government censorship through prior restraintmight be warranted: (1) protection of crucial war information; (2) banning obscene materials; (3) preventing the incitement of violence against the community or overthrow of the government; and, (4) protecting privacy. The obscenity prohibition was upheld in Kingsley Books v. Brown (1957) by supporting state law that allowed public officials to seek injunctions against the sale of materials considered obscene. The issue of civil or criminal liabilityregarding libel did not come to the Court until New York Times Company v.Sullivan (1964). The Court provided some protection to the press by holding that public officials must prove "actual malice" to recover libel damages. Later, the Court decreased press protection when non-public figures were suing. The most celebrated prior restraint decision regarding national securitywas New York Times v. United States (1971). The Court refused to block newspapers from publishing previously classified foreign policy informationon the Indochina war but did leave open that national security considerations remained a legitimate cause for prior restraint. As a result criticism by the press greatly influenced public opposition to the Vietnam War.
Regarding privacy, the Court set limits on private damage suits against the press for invasion of privacy. In 1975, the Court in Cox Broadcasting Corp.v. Cohn overturned a Georgia state law prohibiting publication of rape victims' names already found in public records. But the Court noted states could pass laws keeping such information out of public records. Later, in 1989,the Court overturned a lower court's award of civil damages under a state lawprohibiting disclosure of rape victim's name in Florida Star v. B. J. F. in a case where the victim's name was mistakenly and illegally placed inthe public record. Regarding the old issue of newspaper taxation, the Court held in Minnesota Star v. Minnesota Commissioner of Revenue (1983) andlater cases that any taxes must be equally applied to all, not singling out publishers.
News Gathering
Another area addressed by the Court involved press claims that to effectivelyperform their duties for the public, government must provide special accessto proceedings and institutions. However, the Court did not recognize such ageneral constitutional right of access except in criminal trials. The Court also did not recognize a journalist's privilege to withhold information in protecting news sources. Three cases addressed by the Court in 1972 involved reporters challenging subpoenas to testify before grand juries. In all, reporters claimed the promise of confidentiality was imperative to their informationgathering activities. Significantly, the Court ruled in Branzburg v. Hayes (1972) that journalists do not have such privileges beyond ordinary citizens. A public interest in law enforcement prevailed over press rights. In Zurcher v. The Stanford Daily (1978) the Court also upheld police use ofsearch warrants rather than subpoenas against news organizations. As a result, in 1980 Congress passed a law prohibiting newsroom searches by governmentofficials except under special circumstances.
Access to public facilities was the topic of two Supreme Court cases in 1974,in Pell v. Procunier and Saxbe v. Washington Post. The Court rejected press claims to a special right of access by upholding rules restricting reporters' access to inmates, like citizens. The finding was further affirmed in the 1978 Houchins v. KQED ruling. The Court essentially held that the First Amendment does not require the government to allow special access not available to the public. Yet, the press does have an important societal role in keeping the public informed. The first issue addressed by the Courtin press access to criminal trial proceedings involved protecting a defendant's right to a fair trial. In the 1960s and 1970s, many judges issued "gag orders" forbidding the press to publish certain information. In 1976 Nebraska Press Association v. Stuart the Court overturned a gag order. Some courts responded by closing pretrial hearings to minimize publicity. However, in1980 in Richmond Newspapers, Inc. v. Virginia the Court ruled that except in rare cases, criminal trials must be open to the press. In 1986 the Court extended the right to pretrial hearings in Press-Enterprise Co. v. Superior Court of California. The entire criminal judicial system was openedto public scrutiny.
The Electronic Age
Though First Amendment press protections were eventually extended to broadcasting and cable television media, the courts recognized a government regulatory role because of the limited number of broadcast frequencies available. In 1943 the power of the Federal Communications Commission (FCC) to determine whoreceives broadcast licenses was upheld. However, the FCC was required to apply neutral criteria not based on an applicant's viewpoints. In the late 1940sthe FCC established a "fairness doctrine" requiring broadcasters to cover public issues and allow various views to be aired. Broadcasters challenged thisrule as government interference of content and a First Amendment violation.In 1969 Red Lion Broadcasting Co. v. Federal Communications Commissionthe Court upheld the rule, but by 1987 the FCC discarded the "fairness doctrine."
Earlier in the 1960s, the FCC had entered the realm of regulating cable television by requiring cable companies to serve local community needs. In the mid-1970s the FCC required new cable systems to allocate channels for public, educational, and local government use but these requirements were not supportedby the Court in a 1979 decision. In 1986 City of Los Angeles v. PreferredCommunications, Inc. the Court extended First Amendment protection to the cable franchising process. Most of the same constitutional guarantees of newspapers and magazines were extended to cable TV in a cable television's "Bill of Rights" in 1994 Turner Broadcasting System v. Federal CommunicationsCommission, though later in 1997 the Court in Turner Broadcasting System v. Federal Communications Commission II added some restrictions.
The Press and Private Ownership
Commercialization of the press began in the early twentieth century, eventually leading to corporate ownership of the media. Increasingly the line blurredbetween political and commercial activities and between public and commercial. Beginning in the 1970s, the courts increasingly extended First Amendment protections to corporate and commercial activities, regardless of their relationship to political debate, consistent with the "marketplace of ideas" doctrine expressed earlier in the century. This broadening, according to critics, opened the door to censorship of the press by shareholders and investors of corporations who own news organizations. Concern over government restriction ofthe press had shifted significantly to concern over corporate censorship. The marketplace had became a commercial marketplace. In the 1990s the Court continued to witness a number of cases seeking to prohibit government regulationof political campaign spending, commercial broadcasting, and commercial speech. Favorable decisions toward the expanded rights came from an increasinglyconservative Supreme Court with support of the political right and business community. People feared that the First Amendment had become a tool for protecting corporate commercial interests rather than the exchange of political ideas.
By the 1990s, distinct changes in public opinion regarding the press' responsibility were being registered in polls. Central to the trend was a distinct lack of trust in the press' fairness through perceived excessive news coverageon some subjects, corporate motives for news ratings and circulation, and respect for personal privacy. The public feared the press role to inform and educate was lost. At the same time, emergence of an interactive media such as talk shows also allowed citizens to participate in the press rather than merely be consumers, led to an even greater exchange of information and opinion. Critical opinions of the government free of censorship or fear of retaliationconstituted a major part of exchanges. Others kept vigilance over governmentintrusions in the press. The American Booksellers Foundation for Freedom of Expression in 1998 assessed threats to freedom of the press through three events: publication of a murder-manual book (Hit Man: A Technical Manual for Independent Contractors) which a 1997 court ruling held was outside FirstAmendment protections; the subpoena of Monica Lewinsky's bookstore purchasesby a governmental special investigator; and, indictments against a major national bookstore chain for selling books containing nude photographs of children. Aiding this diversity of free press concerns was the fact that the Court had never developed a comprehensive theory regarding the freedom of press. Though the United States enjoyed the greatest freedoms for the press in the world, serious issues were in need of resolution as the twentieth century drew toa close.