Freedom of the Press and the Supreme Court
By James Hill, Assistant Professor of Journalism, California State University--Northridge
Introduction
America's commitment to freedom of the press had a difficult birth and a troubled childhood, yet it matured to make the United States the most speech and press protective nation in history[1].
At times, colonists were intolerant of press freedom. Some of its early champions were vague about its meaning, and even seemed to turn against it. Benjamin Franklin was a printer who epitomized such freedom. But a frustrated Franklin once said that cudgels should be used to break the heads of printers who libeled others.[2] Tory printer John Mein was attacked by a mob and fled the colonies, after his newspaper charged in 1769 that wealthy patriots such as John Hancock profited by violating the boycott of British goods they themselves called for.[3] In 1776, Thomas Jefferson advocated a Virginia law that would punish anyone who, in word or deed, defended the British cause.[4] As president, he charged that newspapers "by their abandoned spirit of falsehood, have more effectually destroyed the utility of the press than all the shackles devised by Bonaparte."[5] James Madison wrote the Bill of Rights, and called press freedom "one of the great rights of mankind". But he never defined what he meant by the freedom he enshrined in the First Amendment.[6] Seven years after the Bill of Rights was ratified, Congress passed the Sedition Act, and more than 20 printers were prosecuted for criminally libeling the United States government.
Despite its conflicted beginnings, the First Amendment's freedom of the press clause has become a focused protection that ensures the right of Americans to disseminate information and opinion that ranges from the unpopular to the outrageous. It has also adapted to something the founders could never have imagined--electronic and cyberspace communication. Such media have evolved under a blend of Eighteenth century print freedom and 20th century government regulation. Print media, on the other hand, have benefited from a succession of Supreme Court rulings that largely kept intact the early concept of press freedom.
How did this ill-defined right become a solid protection for printed, spoken, and broadcast words in the 21st century? The road winds from British Common Law, to a series of landmark rulings of U.S. Supreme Court Justices centuries later.
The Origins of Libel and Slander
No sooner was the printing press invented by Johannes Gutenberg in 1450, than monarchs, legislatures, and other rulers tried to control it. A favored method was prior restraint, determining who could or could not publish.
The Tudor-Stuart rule imposed licensing on the press for this purpose in Sixteenth and Seventeenth century England, although it proved largely ineffective.[7] In 1644, John Milton attacked licensing in his eloquent Areopagitica: A Speech of Mr. John Milton For the Liberty of Unlicens'd Publishing, To the Parliament of England.[8] "Give me the liberty to know," said an impassioned Milton, "to utter, and to argue freely according to conscience, above all liberties."[9] Licensing lay mortally wounded, rarely enforced, and was suspended by parliament after 1695.[10]
British authorities also used taxes to suppress publications they didn't like, and reward those they favored. But taxes also proved ineffective; printers prone to criticize Parliament or the King were also prone to use fraud or deception to avoid the levies.[11]
England also punished printers after the fact, under the concept of seditious libel; those who published attacks on the government were fined, jailed, maimed, or even executed. This idea that expression could be punished as a crime is traced to the Thirteenth century, and took two forms. Slandering another person was punished in local or ecclesiastical courts under English common law. Damaging government by speaking or writing was first sanctioned in 1275, under Edward I, when Parliament adopted De Scandalis Magnatum. The statute proscribed the telling or dissemination of "any false News or Tales, whereby discord, or occasion of discord or slander may grow between the King and his People, or the Great Men of the Realm, and he that doth so, shall be taken and kept in Prison, until he hath brought him into the court, which was the first Author of the Tale."[12]
Slandering an individual may have been common law from the start, but seditious libel, or harming the government, did not rise to common law until 1606. Sir Edward Coke reported a ruling from the Court of the Star Chamber about a verse that criticized two bishops. The court decreed that libelers could be punished by either the Chamber or under common law. It also advanced a key notion--libel was a crime regardless of whether the statement was true or false. The court reasoned that slander against an individual could lead to revenge. Maligning a magistrate or public person was a greater scandal, because it undermined the King.
The Star Chamber was abolished in 1641, but its legal logic concerning seditious libel lived on. Printer John Tutchin was tried for seditious libel in 1704, prompting Chief Justice John Holt to write that no government could exist "If people should not be called to account for possessing the people with an ill opinion of government."[13] The legislature or the executive could prosecute an offending printer for publishing work deemed to be derogatory to government or its representatives. Further, English common law only allowed a jury to determine if the accused was guilty of making the statement; the judge would pass sentence, whether the statement was true or false.[14]
William Blackstone's Commentaries on the Laws of England (1765-1769) was the definitive legal authority in England and the United States. Blackstone wrote that "The liberty of the press is indeed essential to the nature of a free state", and there should be no prior restraint.[15] But Blackstone did not attack the concept of seditious libel, that people could criminally assault their government with words.
Blackstone's commentaries noted both the force of law and the reasoning behind it. "Spreading false news", was to "make discord between the king and nobility, or concerning any great man of the realm" and was "punishable with fine and imprisonment."[16] Underscoring the supremacy of the King, Blackstone wrote:
"...the sovereign; who by virtue of his royal prerogatives is not under the coercive power of the law; which will not suppose him capable of committing a folly, much less a crime. We are therefore, out of reverence and decency, to forebear any idle inquiries of what would be the consequence, if the sovereign were to act thus and thus: since the law deems so highly his wisdom and virtue, as not even to presume it possible for him to do anything in consistent with his station and dignity."[17]
In the Colonies
John Campbell published the first colonial newspaper in Boston in 1704. His Boston News-Letter was bland compared with the news sheets that would proliferate 60 years later. Campbell's paper was so non-confrontational that it received a subsidy from the legislature. But the biting commentary that would typify the colonial press arrived in Boston in 1721, when James Franklin published a rival newspaper, the New England Courant.
Franklin fancied himself a crusader on behalf of the public, and his abrasive style of journalism quickly drew critics. A writer in the News-Letter slammed Franklin's paper for its "Unmannerlyiness, railery, Prophaneness ... Lyes, Contradictions, and what not ... all tending to ... Corrupt the Minds and Manners of New England."[18] When Franklin wrote a pamphlet in 1722, urging voters to elect non-corrupt representatives, the governor's council jailed him for "Indiscretion and Indecency".[19] James' brother and apprentice Benjamin took over running the Courant while the older Franklin was in jail, and defended press freedom in spirited articles. But the law of seditious libel remained firmly in place.
Thirteen-years later, the law would be challenged in a landmark case argued by Andrew Hamilton, an attorney and former Speaker of the Pennsylvania Assembly. The New York sedition trial of printer John Peter Zenger would establish for the first time that a jury, not a judge, would decide if seditious libel was committed, and that the truth of the alleged libel would be a defense.
Zenger was arrested and jailed on November 17, 1934, and charged with "raising sedition" through his newspaper, the New York Weekly Journal. The paper was started a year earlier, as the organ for a group of wealthy men who opposed New York Governor William Cosby. The governor had just installed his hand-picked judge, James Delancey, as chief justice, and Delancey presided over the Zenger trial.
The mere publishing of an alleged libel was proof of guilt under existing law, so the courtroom was surprised when Hamilton admitted Zenger both printed and published the articles in question. But Hamilton challenged the prosecutor, arguing "You will have something more to do before you make my client a libeler. For the words themselves must be libelous--that is, False, Malicious, and Seditious--or else we are not guilty."[20] Justice Delancey rebuked Hamilton for suggesting truth as a defense. "The Court is of the opinion you ought not to be permitted to prove the Facts in the Papers", said the justice, and cited a list of earlier cases and authorities.[21]
But Hamilton, 60-years old and frail, made a direct appeal to the jury to find Zenger not guilty, saying the printer had simply published the truth. "It is the Cause of Liberty," said Hamilton, "and I make no doubt but your upright Conduct, this day, will not only entitle you to the Love and Esteem of your Fellow-citizens; but every man who prefers Freedom to a Life of slavery will bless and honour You." The jury voted to acquit Zenger, and the printer was released from jail.[22]
The Zenger case has been hailed as a turning point in jurisprudence concerning seditious libel, but this almost certainly overstates the legal impact the case had at the time. In finding Zenger not guilty in spite existing law, the jurors engaged in jury nullification, essentially rebelling against the law to exonerate the printer. In doing so, they set no legal precedent.[23] Justice Delancey had the authority to set aside the verdict or overrule Hamilton, but he did not. Because the case did not set legal precedent, Zenger could have been re-arrested with his next article criticizing the governor. That did not happen either, perhaps because Governor Cosby was politically embattled at the time, fell ill, and died two-years after the Zenger verdict.[24] Seditious libel prosecutions would live on.
Press Freedom During the Revolution
Historians debate whether vigorous journalism typified pre-Revolutionary War printers. Printing a newspaper was a difficult living, and many publishers went out of business.[25] Those who survived often avoided controversy or strong commentary as a matter of financial survival; they were afraid to anger subscribers.
It was not until the 1760s that printers began to see themselves as purveyors of strong opinion, and newspaper's became an engine of political activism.[26] In the aftermath of the Seven Years War, Britain needed to pay off its war debt, and wanted the colonies to provide the cash. Beginning with the Sugar Act of 1764, the Crown hit the colonies with a series of unpopular taxes. Whig printers quickly learned there was a huge appetite for articles that railed against the British levies. Tory printers took up the opposite cause for loyalists. The Stamp Act of 1765 energized the printers further, for it taxed them a half-penny for each sheet of stamped newsprint they used.
Freedom of the press during this period was a contorted concept; publishing flourished, but rhetoric became increasingly partisan, vicious, and prone to inspire attacks on Tory printers. The Boston Chronicle's John Mein and John Fleeming, were confronted by an angry patriot mob in 1769, and fled to a British ship.[27] Loyalist James Rivington and his Gazetteer published out of the relative safety of British-held New York. But patriots launched a boycott of his paper in 1774, and the next year Rivington's press was destroyed.[28] He fled the colonies. In this climate of fear, it is not surprising that Tory newspapers were filled with opinion from writers who remained anonymous.[29]
The rising tensions between the British and the colonists spawned more than 300 printers. According to figures compiled by G. Thomas Tanselle, they produced 600 items a year, in more than 70 cities, with Boston, New York, and Philadelphia accounting for more than half the activity.[30] Whig printers formed the overwhelming majority.
The proliferation of newspaper articles, pamphlets, and broadsides critical of the British did not result in a rise in prosecutions for seditious libel. The reason may well be one of simple intimidation, rather than an expanding sense of press freedom. The Zenger acquittal probably discouraged Britain from such trials; there were none initiated by the Crown after 1735. By the 1760's, the British appeared to fear that overwhelming public anger over such actions would make them counter-productive.[31]
Press Freedom and the Constitution
Framers of the U.S. Constitution meeting in September, 1787 failed to write any protection of the press into the document. South Carolina delegate Charles Pinckney recommended that freedom of the press should be "inviolably preserved," but he never defined what he meant by press freedom. Delegate Roger Sherman countered that it was unnecessary, because the "power of Congress does not extend to the Press." The convention adjourned three days later, after voting down the entire idea of adding a bill of rights to the Constitution.[32]
The issue was resurrected when James Madison promised to include a bill of rights, to overcome the reluctance of some states in ratifying a Constitution that gave so much power to a federal government. Issues such as the First Amendment's religion clauses were debated in Congress, but the free press clause was not. Madison's only recorded statement read: "We mean nothing more than this, that the people have a right to express and communicate their sentiments and wishes, we have provided for it already. The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government."[33]
The prevailing legal view at the time was still that of Sir William Blackstone; there could be no prior restraint of the press, but libel could be punished when published.
The Sedition Act of 1798
The use of Common law seditious libel reached its pinnacle in the United States, when the Federalist-dominated Congress passed the Sedition Act in July of 1798, only seven years after the Bill of Rights was ratified. It outlawed "any false, scandalous, and malicious writing ... against the government of the United States, or either house of the Congress ... or the said President ... or to excite against them the hatred of the good people of the United States."[34] President John Adams' secretary of state, John Pickering used the act to indict 14 people, convicting ten of them. State or federal courts also convicted five others, based on seditious libel under British Common Law. Nearly all the defendants were Jeffersonian Republicans. While the number of cases was small, it undoubtedly had a wide impact in discouraging the free expression guaranteed in the First Amendment.[35]
In spite of the intimidation it spread, the Sedition Act reflected some of the precepts libertarians of the era had hoped for. It codified the principles of the Zenger case more than 60 years earlier: the truth of a statement was a defense, criminal intent had to be shown, and a jury, not a judge, would decide both the law and the facts of the case.[36]
The act had been passed with a sunset clause of two-years, because Federalists did not want it used against them, if Thomas Jefferson won the presidency. The Sedition Act expired in March, 1801, the last day of the Adams administration.[37]
The End of Seditious Libel
Three years after the Sedition Act expired, the libel trial of Harry Croswell led to a legal standard that lasted 160 years.[38] In 1804, a grand jury in New York indicted Croswell for common law seditious libel, at the request of President Thomas Jefferson.[39] The Federalist printer had published a charge that Jefferson paid a newspaper editor to spread rumors that George Washington was a robber, traitor, and perjurer.[40] Croswell was convicted at trial, and appealed to the state's high court. There, Alexander Hamilton argued for "the right to publish with impunity truth, and with good motives, for justifiable ends, though reflecting on Government, Magistracy, or individuals."[41] The four justices divided evenly, and Croswell's conviction stood.
But Hamilton's standard would have a lasting impact. In 1805, the New York Legislature passed a law which permitted truth as a defense, if published with "good motives and for justifiable ends". Other states followed suit, and in 1812, the U.S. Supreme Court blocked the federal government from prosecuting under the old law of seditious libel.[42]
Press Freedom Grows
The jurisprudence of free speech and press was light on protection before 1919, as courts continued to follow the Blackstonian precedent that prior restraint was unlawful, but punishment after the fact was permissible.[43] Many of the groups and individuals promoting unfettered free speech and publication were considered radicals, well outside the mainstream of popular thought. Examples were the Industrial Workers of the World (Wobblies), the National Defense Association (1878), and the Free Speech League (1902).[44]
In 1907, a mainstream newspaper publisher and U.S. Senator, Thomas Patterson, was convicted of criminal contempt for writing a series of articles attacking the Colorado Supreme Court. In Patterson v. Colorado, Oliver Wendell Holmes wrote for the U.S. Supreme Court in rejecting Patterson's appeal. He reasoned that the First Amendment prohibits previous restraints, but allows for "subsequent punishment of such as may be deemed contrary to the public welfare." Truth, argued Holmes, was no defense.[45]
Several cases that involved anti-war and anti-American writings during WWI spurred key rulings that began to transform the Court's thinking on free speech and press. The first landmark case, Schenck v. United States (1919), resulted in Holmes' "clear and present danger" test. Charles Schenck was a member of the Philadelphia Socialist party, whose pamphlets denounced the war and urged inductees to fight for repeal of the draft law. Holmes upheld Schenck's conviction of violating the Espionage Act, arguing that the "question in every case is whether the words used, are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."[46]
The Supreme Court used the "clear and present danger" test to uphold the convictions of German-language newspaper editor Jacob Frohwerk and American Socialist Party leader Eugene Debs. Both had been convicted of publishing anti-war tracts in violation of the Espionage Act.[47]
The next major First Amendment case the Court also upheld criminal convictions for publishing anti-war tracts, but this time, Holmes dissented. Jacob Abrams and four other Russian immigrants had been sentenced to 20 years in prison for publishing two leaflets that urged a general strike to stop the manufacture of munitions, and to protest sending American soldiers into Russia. Justice John Clark wrote for the majority in Abrams v. U.S. that "the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States."[48] But Holmes wrote in dissent that the Constitution supports the theory of "the free trade of ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market."[49]
In 1925, the case of New York radical Benjamin Gitlow produced another key advance; the First Amendment not only prevented infringement by the federal government, it enjoined the states as well. Gitlow was found guilty under the New York's criminal anarchy law, for publishing 16,000 copies of a call to revolution titled the Left Wing Manifestoes. As in the previously cited cases, the Court upheld Gitlow's conviction. But this time, the Court's conservative majority said it assumed that "freedom of speech and of the press...are among the fundamental personal rights and ‘liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states."[50]
The Supreme Court acted to incorporate the First Amendment to the states three years later, in Near v. Minnesota (1931).[51] The case overturned Minnesota's Public Nuisance Law, which was enacted in 1925 to curb scandal sheets and their often irresponsible reporting on alleged political corruption in Minneapolis and St. Paul. The law targeted anyone who published or possessed "(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or (b) a malicious, scandalous and defamatory newspaper"...[52]
Politically ambitious County Attorney Floyd Olson was incensed by the aggressive and critical coverage in the Saturday Press, published by Jay Near and Howard Guilford. The sensationally-written paper had often targeted him. Olson went to court vowing to "put out of business forever the Saturday Press and other sensational weeklies."[53] He won a temporary injunction that silenced the Saturday Press. Near and Guilford appealed to the state's high court. The Minnesota Supreme Court issued a strong opinion that supported the state's gag law, and proclaimed "our constitution was never intended to protect malice, scandal and defamation when untrue or published with bad motives or without justifiable ends."[54]
In 1928, the American Civil Liberties Union announced it would appeal the Minnesota decision to the U.S. Supreme Court, calling the state decision "prior restraint" and "a menace to the freedom of the country."[55] The case was placed on the Court docket in April, 1930, as the ACLU withdrew and was replaced by a high-power legal team paid for by Chicago Tribune publisher Robert "Bertie" McCormick, and the American Newspaper Publishers Association. It was the first time the free press issue of prior restraint had reached the U.S. Supreme Court.[56]
On June 1, 1931, Chief Justice Charles Evans Hughes read the majority opinion, with the loud voice and dramatic intonation that would characterize his oral presentations. "It is no longer open to doubt," said Justice Hughes, "that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action."[57] The court had reversed the decision of the Minnesota Supreme Court, struck down the state's Public Nuisance Law, and did so by applying the First Amendment to the states.
Jay Near and his muckraking Saturday Press had won what was arguably the most important free press case at the era--but just barely. The 5-4 decision might have gone the other way, if the case had been decided one year earlier, when conservative Chief Justice William Howard Taft and Associate Justice Edward Sanford were still on the Court.[58]
The Court placed some spoken and published words outside the umbrella of the First Amendment in 1942, when it ruled in Chaplinsky v. New Hampshire that libel, "fighting words," and obscenity are not protected. In the case of libel, all states allowed truth as a defense. The Supreme Court largely left libel up to state laws. This was underscored in Beauharnais v. Illinois (1952), which upheld a state ban on the libeling of any group.[59]
In 1964, the court decided a case involving libel and public officials that would transform libel law for journalists covering government affairs, and all but immunize the news media from libel suits.[60] Montgomery, Alabama Police Commissioner L.B. Sullivan sued the New York Times for an ad it ran, signed by activists and black clergy who were critical of Alabama authorities' treatment of civil rights demonstrators. Like other states, Alabama law considered truth an absolute defense in libel cases. But Sullivan charged there were factual errors in the advertisement, and his lawsuit asked $500,000 in damages. It was a huge sum in 1962, and could have bankrupted the newspaper, which was struggling with labor and financial problems at the time.[61]
Sullivan argued that while truth was a defense, there were errors in the ad that ran in the New York Times. The errors were mainly trivial; the ad claimed, for example, that Dr. Martin Luther King, Jr. was arrested seven times, when he was actually arrested four. One mistake proved substantial; the ad said protesting students were kept out of Alabama State University's cafeteria in order to starve them into submission. It was simply not true.[62] The Times lost at the trial level, and again on appeal to Alabama's high court.
Appealing to the U.S. Supreme Court, the newspaper turned to Herbert Wechsler, a professor at Columbia Law School, who charted a winning course in New York Times v. Sullivan. He attacked the libel conviction as a throwback to the law of seditious libel. He pointed out that even the Sedition Act of 1798 demanded there be truth beyond a reasonable doubt that a publisher intended to bring an official into "contempt or disrepute." But the law as applied by Alabama, he argued, "transformed the law of defamation from a method of protecting private reputation to a device for insulating government against attack."[63]
Chief Justice William Brennan spoke for a unanimous Court in agreeing with Wechsler's reasoning: "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history ... Because of the restraint it imposed upon criticism of government and public officials,[the Sedition Act] was inconsistent with the first Amendment."[64]
Brennan went on to note that the risk of being sued by public officials placed a chill on freedom of discussion and public debate. The Court therefore included four rules to guide the legal principle of its ruling: (1) To prove libel, public officials would have to show the statements were made with "actual malice", meaning with knowledge the statements were false or with a "reckless disregard" of whether they were false. (2) Actual malice has to be proven with "convincing clarity." (3) A jury may not infer that criticism of a subordinate also criticizes a higher-ranking official. (4) Judges must review the material and determine if the evidence is constitutionally sufficient.[65]
The principles of New York Times v. Sullivan were expanded to include public figures in two 1967 cases. In Curtis Publishing Co. v. Butts, a University of Georgia coach sued over an article alleging he tried to fix a game. Associated Press v. Walker concerned a retired general and an AP story that he led an anti-desegregation mob during riots at the University of Mississippi. The Court ruled in favor of the press in Associated Press, finding the media had greater freedom in reporting about public figures than with stories about private citizens.[66] In Curtis Publishing, the Supreme Court found that Butts was a public figure, but ruled in his favor, saying elementary precautions were not followed in investigating the article about him.[67]
A potential landmark case developed in 1973, when the New York Times began a series of stories that touched off an intense court battle. At issue were White House efforts to stop further publication through a court-ordered injunction. New York Times Co. v. United States, commonly known as the Pentagon Papers case, lasted only 15-days, and reaffirmed the ban on prior restraint established in Near.
Daniel Ellsberg, then at the Rand Corporation, had copied a top secret, 47-volume study of the Vietnam War. The study had been commissioned by former Defense Secretary Robert McNamara, and Ellsberg had worked on part of it. But Ellsberg became disillusioned with the war, and he wanted to make the critical study public. He leaked it to the New York Times, and reporter Neil Sheehan wrote the series beginning on June 13.
President Richard Nixon's attorney general, John Mitchell, sent the newspaper a wire citing "irreparable injury to the defense interests of the United States," requesting no further publication of the series, and that the Pentagon documents be returned. Within the newspaper, there was turmoil over whether to comply, and attorneys for the Times warned that the paper might violate espionage laws if it did not. But publisher Arthur Ochs Sulzberger personally gave the go ahead, and the newspaper published a second story in the series.[68]
The government went to Federal District Court Judge Murray Gurfein, a Nixon appointee in his first day on the bench. It filed an unprecedented request for a prior restraint order against the newspaper. It was the first time since the adoption of the U.S. Constitution, that the government sought prior restraint against a free press. Gurfein granted it on June 15, and the Times withheld its next story in the series.[69]
Meanwhile, the Washington Post began its own series on the Pentagon Papers, and a similar government request for injunction was turned down by Judge Gerhard Gesell. Both the Times and the Post decisions were appealed, with one court reversing Gurfein's decision, and another court upholding Gesell's ruling. On June 25, the U.S. Supreme Court agreed to hear evidence the next day. It issued a 6-3 per curiam decision four days later.
The Court vacated all the injunctions as unconstitutional prior restraints. But the decision fell short of a legal landmark, because the newspapers had not argued that the First Amendment forbade prior restraint under all circumstances. Instead, they argued the government did not prove its contention in this particular case that publishing would damage national security.[70] Nonetheless, the government had attempted unprecedented prior restraint in a head-to-head battle with the press, and it lost.
But based on the ruling, if the government could prove damage to national security, it could still secure a restraining order. It happened eight years later in United States v. Progressive Inc. (1979). The magazine wanted to publish instructions for making an atomic bomb. A district court judge granted a restraining order to halt the article's publication, citing harm to national interests, based on the Pentagon Papers case.[71]
Access To Information
Justice John Stevens declared that "without some protection for the acquisition of information about the operation of public institutions the process of self-governance contemplated by the Framers would be stripped of its substance."[72] His words were written on the losing side, in a dissent, but they clearly framed the press' argument that the First Amendment protected access to information.
In a series of cases, the Court generally supported a right of access, though it also set limits. It was a balancing act of two constitutional questions: Did publicity create prejudice against defendants, and violate Sixth Amendment rights? Or was it vital to the public's right to be informed, under the First Amendment?[73]
The 1976 case of Nebraska Press Association v. Stuart came down on the side of access. It struck down a state court order that prohibited publication of a mass murderer's alleged confessions and other evidence given in a preliminary hearing. The lower courts justified the order as a way to keep sensationalism from impacting the trial. The Supreme Court ruled this impermissible prior restraint, especially since the trial court had other tools, such as change of venue, or jury sequestration, to protect against sensational publicity.[74]
But three years later, the Court dodged the First Amendment, and supported a state court order, which closed the courtroom to the press and public during a pretrial hearing on suppression of evidence. In Gannett Co. v. DePasquale (1979), Justice Potter Stewart did not address the First Amendment. Instead he wrote that the Sixth Amendment right of a public trial existed for the defendant, not the press or the public. It was not a popular opinion, and was criticized for allowing secret trials.[75]
A year later, Justice Warren Burger reversed such legal logic, and stressed the First Amendment, not the Sixth, in granting press access to a murder trial. In Richmond Newspapers, Inc. v. Virginia (1980), the murder defendant had requested the trial be closed, after three earlier mistrials. The trial judge so ordered, under the broad discretion he had under Virginia law.
However, only two other Supreme Court Justices were in full agreement with Burger's opinion. Others concurred with him, but wrote opinions with differing views of the interplay of the First and Sixth Amendments. They touched on three themes: that trials have traditionally been open to the public, open trials guard against official misconduct, and such openness is a key to an informed and educated public.[76]
Burger refined and re-enforced a First Amendment right of access two years later in Globe Newspaper Co. v. Superior Court. The Court struck down a Massachusetts law, a trial judge used to close the courtroom during testimony of an alleged child sexual abuse victim. Burger now left no doubt his Richmond Newspapers decision "firmly established for the first time that the press and general public have a constitutional right of access to criminal trials...to ensure that this constitutionally protected 'discussion of governmental affairs' is an informed one."[77]
A First Amendment right of access had been established by the Court, but the justices did not go on to grant the press special treatment. In two cases involving reporter access to prisons, the Court upheld state and federal laws barring press interviews with prisoners. In the 1974 cases of Pell v. Procunier and Saxbe v. Washington Post Co., the Court ruled that the press has access equal to that enjoyed by the public, but it did not have a right beyond it.[78]
Reporter's Privilege
Journalists often rely on information from people who provide it on the condition that they are not revealed as the source. Reporters take the legal position that they have the right to keep such confidences, even if prosecutors want them to give up their sources to aid a law enforcement investigation. Such an arrangement is considered vital by journalists who seek to uncover the inner workings of government, or investigate illegal activity, for the benefit of an informed public. Many states agree with this reasoning. They have passed "shield laws" that prevent prosecutors or grand juries from forcing journalists to reveal confidential sources. But is there a constitutional right to such protection? Is there an implicit federal shield law? The answer to both questions is no, and Branzberg v. Hayes (1972) is the reason.
Branzberg was a composite of three cases in which reporters refused to testify before grand juries probing possible illegal activities. Paul Branzberg had reported on the street drug culture in Kentucky, while Earl Caldwell and Paul Pappas had researched unrelated stories on the Black Panthers.[79] In each case, the reporters did not claim absolute privilege. Instead, they maintained they should not be forced to testify and reveal confidential sources and information, unless the government demonstrated two key points: that the material was important to the cases, and could not be obtained from sources other than journalists.[80]
Justice Byron White wrote for the 5-4 majority, which rejected the notion that reporter's privilege was protected by the Constitution. He noted that news reporting came under the protection of the First Amendment. But he did not believe denying reporter's privilege rose to the level of press infringement, as did prior restraint. When he balanced the needs of law enforcement with those of news reporters, he sided with the authorities.[81] "We cannot seriously entertain the notion," wrote Justice White, "that it is better to write about crime than do something about it."[82]
The First Amendment and Broadcasting
The development of radio, from the 1880s into the early 1900s, revolutionized both the transmission of information and government controls over the medium. The reason was technical necessity.
Wireless transmissions from nongovernmental operators interfered with similar broadcasts from 20 wireless stations operated by the U.S. Navy. So in 1912, Congressed responded with a law requiring the Department of Commerce to license private broadcasters, and assign them frequencies that did not clash with Navy wavelengths.[83]
The number of radio stations grew rapidly and by 1927, over 700 were broadcasting. Secretary of Commerce Herbert Hoover lacked authority under the 1912 law to prevent private frequencies from interfering with each other. So the Radio Act of 1927 established a five-member Federal Radio Commission to regulate the burgeoning private radio industry. The commission began granting private broadcasting licenses with a key proviso: the holders had to operate in the "public interest, convenience, or necessity."[84]
The federal government's control over the nation's private broadcasters was tightened with the Communications Act of 1934. Its seven-member Federal Communications Commission (FCC) had authority over all telecommunications. It had power to refuse license renewal if an operator did not act in the public interest. The underlying premise was that the airwaves belong to the public, and the federal government must regulate their use in the public interest.
The FCC's mandate included the following areas: assigning frequencies and their power, mapping areas a station could serve, requiring sharpness in transmissions, barring obscene communications, and making rules and regulations needed to carry out provisions of the statute.[85] The stage was then set for a contest between federal regulation and the free press clause of the First Amendment.
Two major cases came before the Supreme Court and both were victories for the FCC. In the first, the National Broadcasting Company (NBC) challenged FCC Chain Broadcasting Regulations controlling the relationships between networks and their affiliate stations. The commission had formulated the rules after it determined that NBC and CBS held too much control over their affiliates.
In National Broadcasting Co. v. United States (1943), the Court found that the FCC's underlying act and its "public interest, convenience, or necessity" supported the Chain Broadcasting Regulations. The FCC had survived its first Supreme Court test.
Red Lion Broadcasting Co. v. Federal Communications Commission was a direct First Amendment challenge to the FCC. It reached the Supreme Court in 1969, and affected all that came after it.[86] At issue were two parts of an FCC requirement under the agency's fairness doctrine. One requires broadcasters to air issues "so critical or of such great public importance that it would be unreasonable for a licensee to ignore them completely." The second mandates that a broadcaster covering "a controversial issue of public importance" must assure that opposing views are aired as well.[87]
Red Lion Broadcasting owned radio station WGCB in Pennsylvania, and aired a 15-minute broadcast by the Reverend Billy James Hargis. In it, he attacked author Fred J. Cook concerning his book, Goldwater--Extremist on the Right. When Cook demanded free air time to reply, the station refused. It challenged the FCC equal time requirement as a violation of the First Amendment freedoms of speech and press.[88]
Justice Byron White wrote for the majority that the application of the fairness doctrine was both valid and constitutional.[89] "There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and ... to present those views and voices which are representative of the community."[90] The administrative authority of the FCC over electronic communications would move forward with the imprimatur of the First Amendment.
Current Concepts
To date, the United States has evolved its First Amendment free speech and press law on three separate tracks: print and fundamental speech; common carriers, such as the telephone and postal systems, and some computer networks; and broadcasting, which encompasses both radio and television.[91]
Nearly 100 Supreme Court rulings have applied First Amendment principles of the Eighteenth century to print and basic speech. The Court has consistently found that there is no constitutional mandate for print journalism to serve the public interest.[92]
The Court has taken a different tack for common carriers, ruling that public access is the controlling factor; common carriers must provide service on equal terms, and without discrimination.
With broadcasting, the Congress has established, and the Court has upheld, a complex regulatory system with administrative power vested in the Federal Communications Commission.[93] This has made broadcasting subject to licenses, laws and regulations, while print journalists have remained free from such government regulations and standards.
Several Supreme Court justices have attempted to define the press clause freedoms. Justice Oliver Wendell Holmes advanced the ideas of John Milton and John Stewart Mill, when he coined the phrase "the free marketplace of ideas" as a First Amendment ideal, in his dissent in Abrams v. United States.[94] This was adopted by Justice Lewis Brandeis as well, and was seen in the wording of New York Times v. Sullivan, that the First Amendment was designed to "assure unfettered interchange of ideas."[95]
Justice Potter Stewart wrote in 1975 that the Constitution gives the press a structural protection, because the clause mentions an institution, the press, rather than individuals. Noting that we are all protected under the free speech clause, Stewart reasoned that "if the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy."[96]
Chief Justice Warren Burger wrote a contrasting view of press freedom, in First National Bank of Boston v. Belotti (1978). He argued for a functional definition of press freedom, in which such freedom was never meant to be limited to a particular group. "The very task of including some entities within the 'institutional press' while excluding others ... is reminiscent of the abhorred licensing system of Tudor and Stewart England--a system the First Amendment was intended to ban from this country."[97]
Justice William J. Brennan, Jr. suggested a third approach that combined the structural and functional definitions. Mere expression by the press, he believed, should be protected by traditional principles of freedom of speech. When it comes to gathering news and disseminating it, Brennan argued for the institutional form of press freedom.[98]
Justice William O. Douglas singled out freedom of the press, speech, and religion for what he termed a "preferred position" within the Constitution, writing for the majority in Murdock v. Pennsylvania (1943).[99] The idea was controversial from the start; Justice Felix Frankfurter criticized it for implying a "presumptive invalidity" to any law impacting expression.[100]
A stronger interpretation followed, as Justices Douglas and Hugo Black advanced the notion that freedom of speech is an absolute. They reasoned that the First Amendment language that "Congress shall make no law...." was an unequivocal command that First Amendment freedoms cannot be abridged. The Supreme Court, however, has never adopted the absolutist position.[101]
Philosophers and constitutional scholars have advanced other modern concepts of the free press clause. Alexander Meiklejohn saw constitutional freedom of expression as vital to self-government. Beneficial public policies depend on an informed citizenry, and Meiklejohn believed citizens must be exposed to all relevant information.[102] This thinking was central to the Supreme Court's decision in New York Times v. Sullivan.
At about the same time that the New York Times decision was handed down, Jerome Barron published a challenge to Holmes' free marketplace of ideas, and Meikeljohn's self-government model of free expression. Access to the Press--A New First Amendment Right argued that the free marketplace of ideas rarely functioned smoothly, and therefore needed strong government intervention. Barron attacked what he saw as a concentration of ownership in the media, which excluded most citizens from the arena of public debate. He said government had a duty to remedy the defects of a concentrated marketplace of ideas.[103] Two years after Barron's "Access" piece was published, the Supreme Court appeared to adopt elements of his argument. It upheld the FCC's Fairness Doctrine, requiring broadcasters ensure that both sides of issues are presented to the public.[104]
Conclusion
The developing convergence of print, broadcast and common carriers presents a challenge to First Amendment freedom of the press, as communication moves evermore into the electronic realm. We have seen how the Supreme Court has dealt differently with each of the three areas of communication; print has almost unfettered freedom, common carriers must serve the public on an equal basis, while broadcasters are regulated under the vast bureaucracy of the FCC.
As "the press" blends with electronics and cyberspace, what standard of press freedom will future justices apply? As technology expands the once-limited broadcast frequencies, will this loosen or tighten federal oversight of broadcasting to protect the public interest? The answer will determine if the expansive views of freedom of speech and press that have stood since the Seventeenth century will endure, or be replaced by the restrictive tenets of electronic media regulation.
Selected Bibliography
Bailyn, Bernard and John B. Hench, eds. The Press & the American Revolution. Boston. Northeastern University Press, 1981.
Blackstone, William, Adapted by Robert Malcolm Kerr. Commentaries On The Laws Of England. Of Public Wrongs. Boston. Beacon Press, 1962.
Emery, Michael and Edwin Emery. The Press And America, An Interpretive History of the Mass Media, 7th ed. Englewood Cliffs, New Jersey. Prentice Hall, 1992.
Friendly, Fred W. Minnesota Rag, The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press. New York. Random House, 1981.
Goldstein, Norm, ed. The Associated Press Stylebook and Briefing on Media Law. New York. Basic Books, 2004.
Labunski, Richard E. The First Amendment Under Siege, The Politics of Broadcast Regulation. Westport, Connecticut and London, England. Greenwood Press, 1981.
Levy, Leonard W. Origins of the Bill of Rights. New Haven and London. Yale University Press, 1999.
Lively, Donald E., William D. Araiza, Phoebe A. Haddon, John C. Knechtle, and Dorothy E. Roberts. First Amendment Law, Cases, Comparative Perspectives, and Dialogues. Cincinnati, Ohio. Anderson Publishing Co., 2003.
Powe, Lucas A., Jr. The Fourth Estate And The Constitution. Berkeley, Los Angeles, London. University of California Press, 1991.
Rudenstine, David. The Day the Presses Stopped, A History of the Pentagon Papers Case. Berkeley, Los Angeles, London. University of California Press, 1996.
Schlesinger, Arthur M. Prelude To Independence, The Newspaper War On Britain 1764-1776. New York. Vintage Books, A Division of Random House, 1957.
Smith, Jeffery A. Printers and Press Freedom, The Ideology of Early American Journalism. New York, Oxford. Oxford University Press,1988.
Urofsky, Melvin I. and Paul Finkelman. A March of Liberty, A Constitutional History of the United States, vols 1,2. New York, Oxford. Oxford University Press, 2002.
Footnotes
[1] Lucas A. Powe, Jr. The Fourth Estate And The Constitution, Freedom of the Press in America, (Berkeley, Los Angeles, Oxford: University of California Press, 1991), P. 90.
[2] Leonard W. Levy, Origins of the Bill of Rights (New Haven and London: Yale University Press, 1999). p. 107
[3] Arthur M. Schlesinger, Prelude To Independence, The Newspaper War on Britain 1764-1776 (New York: Vintage Books, A Division of Random House, 1957). p. 104.
[4] Jeffery A. Smith, Printers and Press Freedom, The Ideology of Early American Journalism (New York, Oxford: Oxford University Press, 1988), p. 88.
[5] Ibid., P. 75.
[6] Levy, Origins, p. 117.
[7] Powe,. The Fourth Estate And The Constitution, P. 142.
[8] Smith, Printers and Press Freedom, P. 33.
[9] Powe, The Fourth Estate, P. 142.
[10] Schlesinger, Prelude To Independence, P. 61.
[11] Smith, Printers and Press Freedom, P. 21.
[12] Smith, Printers and Press Freedom,, P. 60.
[13] Ibid.
[14] Schlesinger, Prelude To Independence, P. 62.
[15] Levy, Origins, P. 124.
[16] William Blackstone adapted by Robert Malcolm Kerr, Commentaries on the Laws of England, of Public Wrongs (Boston: Beacon Press, 1962), P. 157.
[17] Ibid., P. 30.
[18] Smith, Printers and Press Freedom, P. 98.
[19] Ibid.
[20] Michael Emery, Edwin Emery, The Press And America, An Interpretive History of the Mass Media, 7th ed., (Englewood Cliffs, New Jersey: Prentice Hall, 1992), P. 35.
[21] Ibid.
[22] Ibid., P. 36.
[23] Melvin I. Urofsky, Paul Finkelman, A March of Liberty, The Constitutional History Of The United States, Volume I (New York, Oxford, Oxford University Press, 2002), P. 183.
[24] Emery, Emery, The Press And America, P. 38.
[25] Schlesinger, Prelude To Independence, P. 52
[26] Ibid., P. 61.
[27] Richard Buel, Jr., "Freedom of the Press in Revolutionary America: The Evolutionism of Libertarianism, 1760-1820", in The Press & the American Revolution, ed. Bernard Bailyn, John B. Hench, (Boston: Northeastern University Press, 1981), P. 78.
[28] Ibid., 60.
[29] Janice Potter and Robert M. Calhoon, "The Character and Coherence of the Loyalist Press", in The Press & the American Revolution, ed. Bernard Bailyn, John B. Hench, (Boston: Northeastern University Press, 1981), P. 229.
[30] G. Thomas Tanselle, "Some Statistics on American Printing, 1764-1783", in The Press & the American Revolution, ed. Bernard Bailyn, John B. Hench, (Boston: Northeastern University Press, 1981) P. 363.
[31] Emery, Emery, The Press And America, P. 38.
[32] Levy, Origins, P. 103.
[33] Ibid., P. 118.
[34] U.S. Statutes at Large, "The Sedition Act", I, Sec. 2, P. 596, in Emery, Emery, The Press And America, P. 69.
[35] Emery, Emery, The Press And America, P. 70.
[36] Levy, Origins, P. 126.
[37] Ibid., P. 182.
[38] Ibid., P. 132.
[39] Urofsky, Finkelman, A March of Liberty, P. 167.
[40] Emery, Emery, The Press And America, P. 75.
[41] Ibid., P. 76.
[42] Ibid.
[43] Urofsky and Finkelman, A March of Liberty, P. 614.
[44] Urofsky and Finkelman, A March of Liberty, P. 614 .
[45] Ibid.
[46] Powe, The Fourth Estate, P. 71.
[47] The Espionage Act of 1917 outlawed any attempt to cause insubordination in the U.S. military, or to disrupt the military draft. Cases prosecuted under the act centered on whether such actions illegally incited unlawful behavior, or were protected under the First Amendment.
[48] Donald E. Lively, William D. Araiza, Phoebe A. Haddon, John C. Knechtle, and Dorothy E. Roberts, First Amendment Law, Cases, Comparative Perspectives, and Dialogues, (Cincinnati, Ohio: Anderson Publishing Co., 2003), P.159.
[49] Lively et al., First Amendment Law, P. 161.
[50] Lively et al., First Amendment Law, P. 30.
[51] Incorporation posits that the due process clause of the Fourteenth Amendment requires that certain federal rights be upheld by the states. It is based on a belief that some rights and liberties are fundamental and therefore binding on the states. This reversed Barron v. Baltimore (1833), which found the Bill of Rights only guarded against encroachment from the federal government.
[52] Fred W. Friendly, Minnesota Rag, The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press, (New York: Random House, 1981), P. 22.
[53] Fred W. Friendly, Minnesota Rag, The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press, (New York: Random House, 1981), P. 50.
[54] Ibid., P. 61.
[55] Ibid., P. 63.
[56] Ibid., P. 91.
[57] Fred W. Friendly, Minnesota Rag, The Dramatic Story of the Landmark Supreme Court Case That Gave New Meaning to Freedom of the Press, (New York: Random House, 1981), P. 149.
[58] William Howard Taft was the only former president to serve as Chief Justice of the Supreme Court. He resigned in ill health in February, 1930, and died one month later. Justice Edward T. Sanford died the same month. In place of the conservative justices, Charles Evans Hughes was appointed chief justice, and Owen Josephus Roberts was appointed as associate justice. Both were considered swing votes in Near v. Minnesota, and wound up forming the majority which decided the 5-4 case. It is possible the case would have gone against Near, had Taft and Sanford been on the court.
[59] Urofsky, Finkelmann, A March of Liberty, P. 821.
[60] Urofsky, Finkelmann, A March of Liberty, P. 926.
[61] Powe, The Fourth Estate And The Constitution, P. 86.
[62] Ibid., P. 84.
[63] Powe, The Fourth Estate And The Constitution, P. 87.
[64] Ibid.
[65] Ibid., P. 89.
[66] Urofsky, Finkelman, A March of Liberty, P. 823.
[67] Norm Goldstein, ed., The Associated Press Stylebook and Briefing on Media Law, (New York, Basic Books, 2004), P. 350.
[68] David Rudenstine, The Day the Presses Stopped, A History of the Pentagon Papers Case, (Berkeley, Los Angeles, London, University of California Press, 1996), Pp. 48, 64.
[69] Rudenstine, The Day the Presses Stopped, P. 106.
[70] Urofsky, Finkelman, A March of Liberty, P. 927.
[71] Ibid.
[72] Powe, The Fourth Estate, P. 190.
[73] Lively et al., First Amendment Law, P. 537.
[74] Urofsky, Finkelman, A March of Liberty, P. 929.
[75] Powe, The Fourth Estate, P. 193.
[76] Lively et al., First Amendment Law, P. 537.
[77] Ibid., P. 538.
[78] Urofsky and Finkelman, A March of Liberty, P. 930.
[79] Powe, The Fourth Estate, P. 179.
[80] Urofsky, Finkelman, A March of Liberty, P. 930.
[81] Ibid.
[82] Powe, The Fourth Estate, P. 182.
[83] Emery, Emery, The Press and America, P. 271.
[84] Ibid., P. 175.
[85] T. Barton Carter, Marc A Franklin, Jay B. Wright, The First Amendment and the Fifth Estate, (Mineola, New York, The Foundation Press, Inc., 1986) P. 31.
[86] T. Barton Carter, Marc A Franklin, Jay B. Wright, The First Amendment and the Fifth Estate, (Mineola, New York, The Foundation Press, Inc., 1986), P. 58.
[87] Ibid., P. 59.
[88] The Radio-Television News Directors Association also sued to have the FCC rules declared unconstitutional. Its case and that of Red Lion Broadcasting were decided by the Supreme Court in the same opinion.
[89] Carter et. al., The First Amendment, P. 61.
[90] Ibid., P. 65.
[91] Lively, et. al., First Amendment Law, P. 33.
[92] Richard E. Labunski, The First Amendment Under Seige, The Politics of Broadcast Regulation, (Westport, Connecticut and London, England, Greenwood Press, 1981), P. 129.
[93] Ibid.
[94] Urofsky, Finkelman, A March of Liberty, P. 617.
[95] Powe, The Fourth Estate, P. 237.
[96] Lively, et. al., P. 15.
[97] Ibid., P. 17.
[98] Ibid., P. 18.
[99] Urofsky and Finkelman, A March of Liberty, P. 724.
[100] Lively, et. al., First Amendment Law, P. 31.
[101] Ibid.
[102] Powe, The Fourth Estate, P. 238.
[103] Powe, The Fourth Estate, P. 245.
[104] Ibid., P. 246.