Freedom of the Press

The right, guaranteed by the FIRST AMENDMENT to the U.S. Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from PRIOR RESTRAINTS on publication and freedom from CENSORSHIP.

The First Amendment to the U.S. Constitution reads, in part, "Congress shall make no law… abridging the FREEDOM OF SPEECH, or of the press." The courts have long struggled to determine whether the Framers of the Constitution intended to differentiate press freedom from speech freedom. Most have concluded that freedom of the press derives from freedom of speech. Although some cases and some legal scholars, including Justice POTTER STEWART, of the U.S. Supreme Court, have advocated special press protections distinct from those accorded to speech, most justices believe that the Freedom of the Press Clause has no significance independent of the Freedom of Speech Clause.

The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice WARREN E. BURGER, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press, and that there is no need to distinguish between the two rights:

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.

The Court has generally rejected requests to extend to the press PRIVILEGES AND IMMUNITIES beyond those available to ordinary citizens. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), it held that a journalist's privilege to refuse to disclose information such as the names of informants is no broader than that enjoyed by any citizen. As long as an inquiry is conducted in GOOD FAITH, with relevant questions and no harassment, a journalist must cooperate.

Justice Stewart's dissent in Branzburg urged the Court to find that a qualified journalistic privilege exists unless the government is able to show three things: (1) PROBABLE CAUSE to believe that the journalist possesses information that is clearly relevant; (2) an inability to obtain the material by less intrusive means; and (3) a compelling interest that overrides First Amendment interests. In an unusual break with tradition, several circuit courts have applied Stewart's test and ruled in favor of journalists seeking special First Amendment protection. Nonetheless, the Supreme Court has steadfastly held to its decision in Branzburg, and shows no sign of retreating from its position that the First Amendment confers no special privileges on journalists.

Laws that affect the ability of the press to gather and publish news are suspect, but not automatically unconstitutional. In Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991), reporters for two Twin Cities newspapers were sued for breach of contract when they published the name of their source after promising confidentiality. The reporters claimed that the law infringed their First Amendment freedom to gather news unencumbered by state law. The Court held that the law did not unconstitutionally undermine their rights because its enforcement imposed only an incidental burden on their ability to gather and report information. Writing for the majority, Justice BYRON R. WHITE said that laws that apply to the general public and do not target the press do not violate the First Amendment simply because their enforcement against members of the press has an incidental burden on their ability to gather and report the news: "Enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations." The Cohen decision indicates the Court's continued unwillingness to extend special First Amendment protection to journalists.

Generally, the First Amendment prohibits prior restraint, that is, restraint on a publication before it is published. In a landmark decision in NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court held that the government could not prohibit the publication of a newspaper for carrying stories that were scandalous or scurrilous. The Court identified three types of publications against which a prior restraint might be valid: those that pose a threat to national security, those that contain obscene materials, and those that advocate violence or the overthrow of the government.

The government argued that publication of certain material posed a threat to national security in the so-called Pentagon Papers case, NEW YORK TIMES CO. V. UNITED STATES, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). There, the government sought an INJUNCTION against newspapers that were planning to publish classified material concerning U.S. policy in Vietnam. The Court found that the government had not proved an overriding government interest, or an extreme danger to national security if the material were to be published. The justices reiterated their position that a request for a prior restraint must overcome a heavy presumption of unconstitutionality.

The Court is steadfast in its holding that prior restraints are among the most serious infringements on First Amendment freedoms and that attempts to impose them must be strictly scrutinized. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), the Court overturned a state court's attempt to ban the press from a criminal trial. The Court held that gag orders, although not per se invalid, are allowable only when there is a CLEAR AND PRESENT DANGER to the administration of justice.

Freedom of the press, like freedom of speech, is not absolute. Notwithstanding the limitations placed on it, the press exercises enormous power and influence, and is burdened with commensurate responsibility. Because journalists generally have access to more information than does the average individual, they serve as the eyes, ears, and voice of the public. Some legal scholars even argue that the press is an important force in the democratic system of checks and balances.

In the wake of the SEPTEMBER 11TH ATTACKS in 2001, the White House placed pressure on the five major television networks not to broadcast videotaped statements by terrorist mastermind Osama bin Laden and his associates. The networks had shown a videotape of bin Laden, and this angered the White House. In early October 2001, the networks agreed not to show such statements again without reviewing them first. The decision came after a conference call among U.S. national security adviser Condoleezza Rice and the heads of the networks. The White House feared that broadcasts from suspected terrorists could contain anything from incitement to coded messages. This agreement aroused concerns that the press was forfeiting its responsibility to report all of the news. Commentators noted that the rest of the world would see the bin Laden tapes via television and the INTERNET, and that the security concerns raised by the U.S. government thus would have little impact.

The balance between restraint and responsibility continued to be tested during the war against TERRORISM and the 2003 invasion of Iraq. In contrast to the 1991 Gulf War, where the press was kept away from the battlefield, the war in Iraq featured "embededded" journalists, who traveled and reported in real time among the U.S. forces. However, the press was restricted to disclosing only certain types of information due to security concerns.