First Amendment

The American Revolution was a revolution of literature as well as politics. The colonists published a profusion of newspaper articles, books, essays, and pamphlets in opposition to various forms of British tyranny. Thomas Paine's Common Sense (1776) and Thomas Jefferson's Declaration of Independence (1776) are two well-known and influential examples of revolutionary literature published in the colonies. A free press, the Founding Fathers believed, was an essential check against despotism, and integral to advancing human understanding of the sciences, arts, and humanities.

The Founding Fathers did not agree on how best to protect the press from ARBITRARY government action. A majority of the Founding Fathers adhered to the English common-law view that equated a free press with the doctrine of no PRIOR RESTRAINT. This doctrine provided that no publication could be suppressed by the government before it is released to the public, and that the publication of something could not be conditioned upon judicial approval before its release. On the other hand, the English COMMON LAW permitted prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or to pay a fine for wrongful published attacks.

A minority of Founding Fathers adhered to the view articulated by JAMES MADISON: "The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws." Madison was concerned that authors would be deterred from writing articles that assailed government activity if the government were permitted to prosecute them following release of their works to the public.

Before 1964, the Madisonian concept of a free press found very little support among the fifty states. Not only was subsequent punishment permitted for seditious and libelous publications, but in many states, truth was not a defense to allegations of DEFAMATION. If a story tended to discredit the reputation of a public official, the publisher could be held liable for money damages even if the story were accurate. In states where truth was allowed as a defense, the publisher often carried the burden of demonstrating its veracity. Newspapers and other media outlets soon flooded the courts with lawsuits alleging that these LIBEL laws violated their First Amendment rights by "chilling" the pens of writers with the specter of civil liability for money damages.

In the seminal case NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), the U.S. Supreme Court extended First Amendment protection for print and electronic media far beyond the protection envisioned by the English common law. Before money damages can be assessed against a member of the media for a libelous or defamatory statement, the Court held, the injured party, not the publisher, must demonstrate by "clear and convincing" evidence that the statement not only was false but also was published with "actual malice." Actual malice may be established only by proof that the media member recklessly published a statement without regard to its veracity or that it had actual knowledge of its falsity. In arriving at this standard, the Court balanced society's need for an uninhibited flow of information about public figures, particularly elected officials, against an individual's right to protect the integrity and value of his or her reputation.

The twentieth century also saw the U.S. Supreme Court strengthen the doctrine of no prior restraint. In NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court ruled that there is a constitutional presumption against prior restraint that may not be overcome unless the government can demonstrate that CENSORSHIP is necessary to prevent a "clear and present danger" of a national security breach. In NEW YORK TIMES V. UNITED STATES, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822(1971), the Court applied this presumption against the U.S. DEPARTMENT OF JUSTICE, which had sought an INJUNCTION to prevent the publication of classified material that would reveal the government's secrecy and deception behind the U.S. involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened U.S. troops by disclosing their location or movement, the Court said, publication would not have been permitted.

In Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed.2d 787 (2001), Court confronted an intriguing issue involving the privacy of wireless phone conversations and the right of the press to report these conversations. It had to consider whether the government could punish the publication because the information was obtained in violation of the WIRETAPPING laws. The government had argued that the laws sought to protect the privacy and to minimize the harm to persons whose conversations had been illegally intercepted. The Court ultimately concluded that these privacy interests were outweighed by the "interest in publishing matters of public importance." Because the people involved in the intercepted call were public figures, engaged in public matters, they had surrendered some of their privacy rights.