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S, Speech and the Press.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Speech and the Press.

The *First Amendment to the Constitution declares that “Congress shall make no law … abridging freedom of speech, or of the press.” The Speech and Press Clauses of the Constitution have gradually come to mean that government officials cannot restrict the public debate about public affairs. Free expression has (p. 944) become both the foundation and the symbol of the policymaking process in the United States.

The framers of the First Amendment recognized that a press free of government control is a vital part of a political system based on the will of the people. The press needs the freedom to report abuses of power by public officials. The people must be able to receive news critical of the government and exchange information and opinions about public affairs without interference by government officials. The lack of government censorship is also considered vital to the search for knowledge, including the advancement of science. In addition, the lack of government supervision over expression allows individuals to search for their own self-fulfillment through art, literature, and music, as well as public debate.

Although the First Amendment was adopted as part of the *Bill of Rights in 1791, almost all of the Supreme Court cases interpreting its language have been decided since *World War I. Not until 1925 did the Court decide that state governments, as well as the federal government, are prohibited from restricting free expression under the Constitution. In *Gitlow v. New York, the Supreme Court declared that First Amendment rights such as the Speech and Press Clauses were protected from infringement by state governments through the *Due Process Clause of the *Fourteenth Amendment, which prohibits states from depriving citizens of liberty without due process of law (see incorporation doctrine).

Even Gitlow is an ancient case compared to most of the Supreme Court opinions affecting the media. Only since 1960 has the Court decided the most significant cases in the law of *libel, *privacy, prejudicial *pretrial publicity, access to court, *cameras in court, rights of *reply to comments in the print and broadcast media, *commercial speech, and confidential news sources. The Court continues to consider speech and press cases annually, thereby adding to its interpretation of the Speech and Press Clauses of the First Amendment.

The Supreme Court’s treatment of free speech and press issues is not only dynamic, but also to some degree unpredictable. The Court relies on a wide variety of legal concepts and tests to decide the speech and press cases it hears. Frequently the Court places a heavy burden of proof on a government institution trying to restrict expression, assuming the effort to be unconstitutional unless the government can show a substantial or compelling government interest. In some circumstances, however, the Court has balanced the interests in free expression against other social values without seeming to give favored treatment to individual speech or the press.

Some consistent themes can be identified, however. For example, the Court ordinarily makes every effort to prohibit governmental interference in the content of a message. The government cannot control the thoughts, ideas, and facts that enter into the public debate. In contrast, the Court permits government to establish content-neutral restrictions on the *time, place, and manner of speech if those restrictions serve a substantial government interest such as a litter-free environment.

The Court has also ruled unconstitutional laws that are so vague that citizens would be tempted to keep quiet out of fear, not knowing whether what they said was illegal. In Smith v. Goguen (1974), the Court ruled unconstitutional a statute that punished anyone who treated the United States flag “contemptuously.” The Court reasoned that what is “contemptuous to one man may be a work of art to another,” declaring that the wording of the act left enforcement authorities with too much discretion (p. 573). The Court has also frequently struck down laws that appear to be so broadly written that they would restrict protected speech as well as unprotected speech. In Los Angeles v. Jews for Jesus (1987), the Court declared unconstitutional an airport regulation that banned all First Amendment activities, such as discussing politics, reading newspapers, and wearing campaign buttons.

The Supreme Court has declared that government efforts to exercise *prior restraint of speech and publication are almost always unconstitutional. Similarly, the Court has said that government can only prosecute political dissidents or socially disruptive speech when the expression is intended to incite imminent lawless activity and is likely to do so. In civil cases, the justices have required persons complaining about expression to show at least negligence or harm before they can collect damages.

The press, in spite of its separate mention in the First Amendment, usually has no greater privileges than any member of the public. However, the Court has established a hierarchy of speech that provides the most protection for political messages and substantially less protection for commercial expression. Some kinds of speech, such as *obscenity, have been excluded from First Amendment protection altogether. Further, the Court applies the First Amendment to different media in different ways, permitting greater regulation of the content of broadcasting than of the news columns in the print media, for example.

The meaning of the Speech and Press Clauses of the First Amendment has changed rapidly since *World War II at least in part because of increased (p. 945) litigation, new scholarship, changes in technology, and the increasing importance of long distance communication. The words “freedom of speech, or of the press” mean significantly more today than they meant in 1791.

Words of the First Amendment.

When the founding fathers adopted the First Amendment in 1791 they certainly intended to prohibit government licensing of books and periodicals and other forms of prior restraint on publication. Laws requiring that officials approve books and newspapers prior to publication had been abandoned in England, and never worked effectively in the colonies.

Scholars are less certain that the founders were ready to abandon the English tradition of punishing writers for criticizing public officials. The *common law of *seditious libel, alive in both Britain and the colonies in the eighteenth century, provided for fines and incarceration of anyone who criticized government officials, laws, or policies in a way that could lead to a loss of reputation or disturbance of the peace. Truth was not a defense. In fact, officials believed truth was more damaging because it would more likely lead to social instability.

The famous trial of John Peter Zenger in 1734 demonstrated the impatience of colonial juries with libel prosecutions brought by English officials, but the jury’s verdict did not change the law. Zenger, publisher of the New-York Weekly Journal, was tried for seditious libel after he printed criticism of New York governor William Cosby. Under the law of the time, the jury only had to decide whether Zenger had printed the material. Zenger admitted printing the remarks but argued that citizens should have the right to speak the truth about public officials. Although a colonial jury found Zenger innocent of defaming an English official, the verdict did not change the law limiting the role of juries or establish that truth could be a defense in libel cases.

In fact, legal historian Leonard Levy said the generation that adopted the First Amendment largely believed in the right of government to punish the criticism of official conduct. Levy argued that at the time the First Amendment was adopted the universal understanding of the words “freedom of the press” came from the renowned compiler of English law, William Blackstone. Blackstone asserted that liberty of the press meant that anyone could print anything they wanted to, but publishing “what is improper, mischievous, or illegal” was a crime that could be punished. While most states adopted constitutions with provisions protecting freedom of the press, they also passed statutes punishing persons critical of the government. In addition, most states adopted the English common law, which included seditious libel provisions.

Yet, newspapers in the 1790s were usually political party organs dominated by heated rhetoric in essays and letters to the editor. Newspapers commonly ridiculed public officials. In addition, many scholars claim, the founders believed that freedom of the press was necessary for a government chosen by the public. Both Federalists and Anti-Federalists, legal scholar David Anderson contends, believed the public needed an independent press as a necessary restraint on the natural tendency of government to be tyrannical and despotic. A press that risked punishment under seditious libel laws when it published criticism of government could hardly be expected to inform the public effectively, scholars argue.

The historical record does not provide enough evidence for twenty-first-century Americans to know what the framers meant when they adopted the First Amendment. No persuasive explanations surface in the congressional debates or the public discussions over ratification of the Bill of Rights. Levy suggests that few of the drafters gave much thought to what the Speech and Press Clauses meant, and that they probably did not agree on a single definition.

By 1798, however, there was much less ambiguity. Within seven years of the time the Bill of Rights was approved, the Federalist majority in Congress passed legislation designed to stop the rhetoric of the opposition Republicans. The Federalists were afraid that the Republicans would destroy the young American republic by fostering the radical French ideas that led to the French Revolution. The Federalists adopted the *Sedition Act, making it a crime to “write, print, utter or publish … any false, scandalous and malicious” writing against the government, Congress, or the president with the intent to defame them. Persons found guilty could be fined up to two thousand dollars and be jailed up to two years. At least ten persons were successfully prosecuted and three newspapers were forced to stop publishing. The law expired when Republican Thomas *Jefferson succeeded the Federalists in office in 1801.

The 1798 Sedition Act included two important reforms that survived the act itself. The statute provided that juries could decide both whether a defendant had published allegedly defamatory language and whether the language was defamatory. Juries, rather than politically appointed judges, could determine what was defamatory. In addition, the act specified that defendants could win libel cases by proving that what they said was true. Although the common-law interpretation after 1800 limited the defense of truth by (p. 946) requiring “good motives,” the courts began to protect truthful criticism of government, a significant step toward open discussion of public affairs.

The end of the Sedition Act did not mark the end of attempts to punish criticism of government. The Jeffersonians, while defending themselves against the Sedition Act, argued that punishing criticism of government amounted to an abridgement of speech, contrary to the First Amendment. Once Jefferson was president, the Jeffersonians filed several libel suits of their own. In 1812, however, the Supreme Court repudiated a federal common law of seditious libel. Slowly, libel law shifted from a matter of criminal law to *civil law. Instead of government bringing prosecutions for libel, individuals sued to protect their own reputations. During the nineteenth century, in addition to the protection of truth, privileges developed for reporting defamatory information that was contained in the public record and for statements expressing opinion rather than assertions of fact.

Speech versus Press.

The Supreme Court has not specifically distinguished between the words “press” and “speech” in the First Amendment. Rather, the Court ordinarily provides the same kind of protection for both “speech” and “press.” The Court has often said that a journalist has no more rights under the Constitution than does any member of the public. Therefore, the Court does not usually accord writers who publish in newspapers any more freedom under the First Amendment than any citizen who chooses to become a speaker. Only a minority of justices have argued that the institutional press should be allowed privileges not available to the average citizen. Only a minority have contended that the press, if no one else, should have access to such places as prisons, so that the media can act as a surrogate when members of the public must be excluded.

Only a few exceptions to the general rule that the terms “speech” and “press” are treated equally can be found. The Supreme Court has suggested that some of the constitutional protections afforded libel defendants may apply only to the media. Journalists are also sometimes granted the special privilege of refusing to disclose confidential sources in court, a privilege developed largely in the lower courts.

The Supreme Court has not clearly differentiated the terms “speech” and “press” at least in part because of the practical difficulty of distinguishing which of the two protections might apply to a given circumstance. Should the pamphleteer be considered a speaker or a member of the press? Should the pamphleteer be treated differently than the soapbox orator? Are book authors protected by the speech clause or the press clause, or both? Or, should a television news reporter be treated differently than a reporter for the print media? The Supreme Court has raised some of the questions without providing the answers.

No Prior Restraint or Compelled Publication.

The Supreme Court has yet to find a permanent government restraint on publication that was not unconstitutional. The justices have said repeatedly that government cannot suppress an idea because society considers it repugnant or offensive, and therefore have made it all but impossible to stop an idea from entering the intellectual marketplace.

The Court has struck down government efforts to stop publication in cases involving libel, *national security risks, and prejudicial *pretrial publicity. It has indicated that prior restraint might be tolerated in cases of obscenity and incitement to violence and national security if the government demonstrates a sufficient risk of harm.

The Court first declared prior restraint to be unconstitutional in *Near v. Minnesota (1931), when it struck down a Minnesota state law that allowed officials to prevent the publication of a “malicious, scandalous and defamatory” magazine or newspaper. Five justices backed an opinion declaring that the most widely accepted understanding of the First Amendment is that liberty of the press means a prohibition of prior restraints on publication. “The fact that the liberty of the press may be abused,” wrote Chief Justice Charles Evans *Hughes, “does not make any less necessary the immunity of the press from previous restraint in dealing with official misconduct” (pp. 719–720). The Court said that public officials who are defamed can sue for libel, but they cannot constitutionally stop the reporting about their behavior. The First Amendment, the Court said, rests on the belief that even if charges of official crimes and blunders disturb the peace, “a more serious public evil” would result if officials could determine which stories were published by the media (p. 722).

The ban against prior restraints has been such an accepted interpretation of the First Amendment that it has only infrequently been challenged. Therefore, no one can be sure under what circumstances a prior restraint might be acceptable. In *Nebraska Press Association v. Stuart (1976), the Court established that criminal defendants trying to stop the publication of potentially prejudicial pretrial publicity face perhaps an insurmountable burden of proof. The Court said that even though prejudicial pretrial publicity may require a conviction to be set aside on appeal, a prior restraint is an irreversible sanction on expression, the “most serious and least tolerable infringement on First Amendment rights” (p. 558). The Court said that a threat of sanctions after publication may “chill” (p. 947) speech, but the law ensures that sanctions are applied only after careful judicial scrutiny. Prior restraints, by their nature, the Court implied, are not exhaustingly evaluated and prevent speech from occurring, possibly destroying its value in the case of reports about rapidly developing current events.

The Court in Nebraska Press Association said that a defendant, in order to obtain an *injunction on the media, would have to establish that the threat to a fair trial was serious and highly probable. A defendant would have to show that restraining the press would eliminate the threat to a fair trial caused by prejudicial publicity and that no other alternatives available to a judge, such as moving the trial, would adequately protect the defendant.

The Court has said even less about what the government would have to prove to convince justices to allow a prior restraint on national security grounds. In the only case decided so far, *New York Times v. United States (1971), the Court prohibited the federal government from stopping the printing of news stories about a classified Defense Department report about the *Vietnam War commonly known as the “Pentagon Papers.” The Court split so badly that the only agreement among the six justices in the majority was that the government had not met the heavy burden of proof required to restrain publication. However, a majority of justices would have required the government to prove at a minimum that disclosure of the information would “surely” result in “direct, immediate, and irreparable damage” to the national security interests of the nation.

If the government cannot prohibit a newspaper from publishing a specific story, neither can the government require a newspaper to publish a story it would not otherwise run. In *Miami Herald Publishing Co. v. Tornillo (1974), the Court struck down a Florida statute that required newspapers to publish replies to criticism about political candidates. The Court said that requiring a paper to print one story as opposed to another unconstitutionally interfered with the rights of editors to determine the content of newspapers. A unanimous Court said that the First Amendment protected against government control of a newspaper’s treatment of public issues and public officials. A statute compelling a newspaper to use its space to print a reply could encourage newspapers to curb their coverage of public affairs.

Licensing and Regulation of Speech

The Court has never suggested that its heavy presumption against prior restraint meant that all speech would be tolerated under all conditions. The Court said in Cornelius v. NAACP Legal Defense & Educational Fund, Inc. (1985), for example, that “even protected speech is not equally permissible in all places and at all times” (p. 799). In fact, the Supreme Court tolerates significant regulation of both person-to-person expression and the mass media.

Since the Constitution was adopted long before the invention of telephones, moving pictures, radio, cable television, the Internet, and satellite communications, the founders could have only envisioned the First Amendment in light of person-to-person speech and the printing press. Newer methods of delivering messages generally have not received as much First Amendment protection from the Supreme Court as face-to-face communication and the printed word. In Burstyn v. Wilson (1951), in a case involving motion picture censorship, the Supreme Court announced that special characteristics of some media require different treatment under the First Amendment. The Court said the basic principles of freedom of speech and press do not vary, but “each method tends to present its own peculiar problems” (p. 503). Thus no one medium will necessarily be subject “to the precise rules” governing other modes of expression.

The most striking example of a different First Amendment standard is the Court’s toleration of a licensing system for broadcasters. In fact, the Court has allowed the government to consider radio and television programming content, including speech about public affairs, when making licensing decisions.

The government began licensing broadcasters who would pledge to serve the “public interest, convenience, or necessity” in 1927. Congress passed the 1927 Radio Act so that a government agency could regulate the time and frequency of radio broadcasts, cutting down on signal interference and making the most efficient use of broadcast frequencies. In the Radio Act, and subsequently in the 1934 Communications Act, Congress adopted such program regulations as a requirement that, if broadcasters provide air time to a political candidate, they must provide equal opportunities to opponents. Congress also prohibited indecent, obscene, and profane speech on the air waves.

In *Red Lion Broadcasting Co. v. FCC (1969), the Supreme Court upheld the constitutionality of at least one broadcast programming regulation. The Court permitted the Federal Communications Commission to require broadcasters to provide time to reply to persons attacked during the discussion of a controversial issue, a regulation similar to the one the Court struck down for newspapers in Miami Herald Publishing Co. v. Tornillo. In Red Lion, the Court said that no person could have a constitutional right to communicate through broadcasting since the electromagnetic spectrum could not accommodate everyone. Therefore, those chosen by the government to (p. 948) receive broadcast licenses must act as fiduciaries for the public and permit diverse views on public issues. The public has a right, the Court maintained, to have broadcasters “function consistently with the ends and purposes of the First Amendment.” The Court continued, that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount” (p. 390). Although many aspects of FCC programming regulation have been eliminated, including all aspects of the fairness doctrine, the commission continues to oversee children’s programs, the air time allocated to political candidates, and indecent programming.

In FCC v. Pacifica Foundation (1978), the Supreme Court permitted the regulation of broadcast indecency under a different rationale. The Court said the Federal Communications Commission could regulate the depiction or description of sexual and excretory activities in a manner patently offensive to the broadcast audience when there is a reasonable risk that children may be watching or listening. The Court said broadcast indecency such as the repetitious use of so-called dirty words could be regulated, but not banned, because broadcast signals intrude into the privacy of the home. In addition, children too young to read might inadvertently be exposed to indecent broadcast programming.

Cable operators, although they carry many of the same kinds of video programming as broadcasters, do not use the broadcast spectrum. In part because cable operators need the public’s right-of-way for their transmission cable, cable is instead licensed by local communities. The Court said in Los Angeles v. Preferred Communications (1986) that cable operators perform many of the First Amendment activities undertaken by newspapers, book publishers, public speakers, and pamphleteers. But when a cable company said its First Amendment rights were violated because Los Angeles refused to issue a permit, the Supreme Court held the First Amendment rights of cable operators must be balanced against the space available on public utility poles for cable and the disruption caused by the laying of cable under city streets. Later, the Court in Turner Broadcasting System v. U.S. (1994 and 1997) said that cable operators could be required to carry broadcast station signals because the coaxial or fiber optic cable transmitting the programming could be a bottleneck that would prevent broadcasters from reaching the public with their programs. Cable operators could decide not to carry broadcast station programming, limiting broadcaster’s access to viewers. The Court said that in order to ensure the survival of “free” over-the-air broadcasting, the government could require cable operators to carry broadcast signals that met commission criteria.

The Court said such regulation did not violate the First Amendment because the government could regulate content that incidentally restricts expression as long as the regulation furthers a substantial government interest unrelated to the suppression of speech. In United States v. *O’Brien (1968), the Court permitted the federal government to punish the burning of a draft card to protest the *Vietnam War because the act infringed on the government interest in efficient military mobilization. The Court said restriction on First Amendment freedoms must be no greater than necessary to further the governmental concern.

The Supreme Court, in *Reno v. ACLU (1997), said the Internet should be freer from governmental supervision than either broadcasting or cable, and treated more like the print media. In striking down as unconstitutional the Communications Decency Act, restricting indecency on the Internet, the Court said that Internet users were less likely to run into objectionable materials by accident than they would by listening to the radio. In addition, the Internet did not have the same physical limitations as broadcast and cable. However, a few years later, in United States v. *American Library Association (2003), the Court said a federal statute did not violate the First Amendment when it required schools to use filtering software on computers to protect children from sexually explicit images. The Court said that the federal statute threatening the loss of federal subsidies for Internet services to libraries not using the filters was a valid exercise of congressional spending power.

If the Court has different First Amendment models for different technologies, it also treats various kinds of content differently under the First Amendment. The Supreme Court gives the most deference to political speech, including debates and reports about public policy and criticism of public officials. The Court has often said that a primary purpose of the First Amendment was to protect an intense and wide-ranging debate about public issues, the kind of speech “indispensable” to the decision-making process in a democracy. The Court usually gives close scrutiny to the regulation of any political speech and often requires that the government substantiate a compelling state interest before regulating. The protections for political speech generally extend to social and economic speech as well.

*Commercial speech receives less First Amendment protection, in part because the motivation to market goods and services is believed sufficient to overcome any “chill” that might occur because of regulation. The Court has also said (p. 949) that commercial speech about a specific product or service is easier to verify than political commentary. In Central Hudson Gas & Electric Corporation v. Public Service Commission (1980), the Court ruled that only the truthful advertising of legal products is protected by the First Amendment interest of consumers to receive commercial information. In order for the government to regulate protected commercial expression, it must restrict speech only as much as necessary to effectively protect a substantial governmental interest.

In *44 Liquormart, Inc. v. Rhode Island (1996), the Court enlarged the constitutional protection afforded truthful advertising. It said that Rhode Island had not demonstrated that a state law banning advertisements for alcoholic beverages directly advanced the substantial government interest in curbing alcohol consumption. The Court declared that the state did not demonstrate that competing advertisements would lower the prices of alcohol, and therefore encourage consumption.

In contrast, speech defined as obscene has been ruled as outside the boundaries of First Amendment protection. Obscenity, the Court said in *Miller v. California (1973), is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive way sexual conduct specifically defined by state law; and (3) lacks serious literary, artistic, political, or scientific value.

Another kind of expression falling outside the protection of the First Amendment is what are called “fighting words,” words that the Court has said in *Chaplinksy v. New Hampshire (1942) are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace” (p. 574). The Court concluded that “fighting words,” which “by their very utterance inflict injury or tend to incite an immediate breach of peace” (p. 572), have no important role in the debate of public issues.

Even in the case of protected speech, the Court will permit narrowly tailored content-neutral regulation of speech. The Court will permit the regulation of time, place, or manner of speech that does not interfere with the message being delivered and leaves adequate channels of communication available. The Court allows the regulation of speech that will facilitate traffic safety or protect the environment from litter, or fulfill another substantial government interest. However, a law regulating speech cannot give a public official broad discretion that can be used to discriminate on the basis of the content of the expression.

Access and News Gathering.

If the Court has usually protected the ability of journalists to publish any information in their possession, it has not protected the ability of the media to gather information for publication with the same tenacity. The Court has generally refused to declare that the news media have a constitutional right to attend governmental proceedings, observe government officials at work, see government records, or protect confidential news sources. The Supreme Court has largely left questions of access by the public and press to government proceedings and information up to the determination of Congress and the state legislatures.

In the one major exception to the rule, the Court has said, in a series of cases in the 1980s, that both the public and the press have a qualified right to observe criminal trials, jury selection, and pretrial hearings. Beginning with *Richmond Newspapers v. Virginia (1980), the Court said open judicial proceedings were implicit in the First Amendment guarantee of the freedom of the press, designed to ensure open communications about government. Criminal proceedings ought to be open to the public and the press, the Court said, because of the tradition of openness in the American judicial system and because of the critical role open proceedings play in encouraging accurate testimony, discouraging corrupt judges, and giving the public confidence in the court system. In order to close judicial proceedings, the Court said in Press-Enterprise Co. v. Riverside County Superior Court (1984), a judge must have evidence of an overriding interest, such as a defendant’s right to a fair trial, that cannot be effectively protected except by closing the courtroom. Even then, closure can only be for as long as necessary to protect the specifically documented need.

The qualified right to observe the courts does not include a First Amendment right to use cameras and tape recorders in court. However, the Court said in Chandler v. Florida (1981) that individual states may permit cameras in state courts as long as cameras do not interfere with the *Sixth Amendment right of a criminal defendant to a fair trial.

In order for the courts to protect the rights of defendants to a fair trial while preserving the rights of the press under the First Amendment, the Supreme Court has encouraged judges to use such devices as the questioning of potential jurors about their impartiality during the jury selection process, moving the trial, delaying the trial, and sequestering jurors from trial publicity. In *Sheppard v. Maxwell (1966), the Court also encouraged judges to restrain lawyers, witnesses, and jurors from talking to the media. The Court has said restrictions on the media to gather news do (p. 950) not constitute a prior restraint on the publication of information already in the media’s possession.

The Supreme Court has required reporters to reveal their confidential news sources to *grand juries. The Court, in *Branzburg v. Hayes (1972), decided 5 to 4 that reporters did not have a First Amendment right to refuse to testify before grand juries. The Court said that reporters who witness drug use and talk to persons suspected of crimes have the same responsibilities to testify in court as other citizens. The Court said the critical need for citizens to contribute to solving crimes overcame the “uncertain” impact that testifying would have on news gathering. However, concurring and dissenting opinions in Branzburg argued for a qualified privilege under the First Amendment for reporters to refuse to reveal confidential news sources. Because of the split in the Supreme Court, lower courts have often protected journalists from testifying unless persons seeking information can prove there is a compelling need for the testimony that overrides First Amendment interests, the information sought is relevant to the proceedings, and there is no alternative source for the information. In *Cohen v. Cowles Media (1991), the Court held that the First Amendment does not bar a state from enforcing state laws punishing reporters who break their promises of confidentiality to sources.

The fact that the Court has found only a limited First Amendment right to gather news may be due in part to the nature of the cases reviewed by the Court. In three cases involving a government interest in prison security, the Court has denied a First Amendment right of access to prisons and prisoners. The Court’s majority refused to acknowledge even a qualified right of access for the public. The Court acknowledged that the First Amendment prevents government from interfering with a journalist’s efforts to seek information and publish from those sources. However, the Court concluded that the Constitution does not impose on the government an “affirmative duty” to provide information not available to the public generally.

The unwillingness of the Court to grant a First Amendment right to the gathering—as well as to the publishing—of news can at least partially be explained by the Court’s unwillingness to give a distinct meaning to the word “press” in the First Amendment. Since the Court treats the press and the public the same, the Court is reluctant to give the press a constitutional right to go places where the public cannot routinely be present. However, in refusing to let the press act as a surrogate for the public, the Court has limited the constitutional rights of access to government information under the First Amendment.

Civil and Criminal Liability.

The Court has said often that First Amendment protections for freedom of speech and press do not prohibit the punishment of some expression or prohibit civil suits asserting that expression caused personal injury. One of the most quoted passages in Supreme Court history is Justice Oliver Wendell *Holmes’s comment in *Schenck v. United States (1919) that the First Amendment does not protect from prosecution a person who created panic by falsely shouting “fire” in a crowded theater.

However, the Court ruled in *Brandenburg v. Ohio (1969) that the government cannot punish a speaker unless it can demonstrate the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (p. 447). The Court overturned the conviction of a Ku Klux Klan member for advocating an illegal act at an indefinite time in the future. The Court’s language in Brandenburg reformulated a test the Court often used in sedition cases in the twentieth century. Beginning in 1919, in a case based on World War I sedition acts, the Court said speakers could not be punished unless their speech constituted a clear and present danger to the security of the nation. However, the test was used more often to punish speech than to protect it in large part because the Court seldom required more than a bare assertion from the government that a danger was “clear and present.”

Yet in the early 1940s, the *clear and present danger test was used to protect journalists writing about the criminal justice system. The Supreme Court held that judges could not cite the news media for contempt of court for comments critical of the judicial process absent a clear and present danger to the administration of justice.

The Court has also ruled unconstitutional laws punishing defamation that disturbs the peace. The Court has said that laws criminalizing words for disrupting civil order punish a speaker because the listeners become violent. The criminal law of libel focuses more on the reaction of the listener than the content of the message, the Court said in Ashton v. Kentucky (1966). Indeed in *Terminiello v. Chicago (1949), the Court noted that free speech may best serve its purpose when it “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger” (p. 4).

However, in Virginia v. Black (2003), the Court ruled that the state of Virginia could constitutionally ban cross burnings intended to strike fear of injury or death in their targets. The Court said that cross burnings intended to intimidate could be punished because the statue did not single out a disfavored topic.

The Court is also reluctant to tolerate criminal prosecution of the media for publishing truthful information about public issues that has been lawfully obtained, even when a newspaper or (p. 951) broadcast station disseminates the information contrary to a state law. In Smith v. Daily Mail Publishing Co. (1979), for example, the Court said that the government must demonstrate an interest of the highest order before punishing journalists for accurate stories including the names of juveniles charged with crimes.

The Court has so far also refused to tolerate civil liability for truthful speech without at least a showing of media negligence. The Court has not ruled out the possibility of permitting civil damages when the media reveal sensitive information involving an individual’s private life. However, it ruled in Florida Star v. B.J.F. (1989) that civil liability for the publication of lawfully obtained, truthful information about rape victims is unconstitutional without a narrowly tailored remedy protecting an important state interest. In Florida Star, while the Court acknowledged that protecting the identity of rape victims may be a significant government interest, it said that a newspaper could not be held automatically liable when the information was obtained through law enforcement officials and could have been disseminated by other means such as office gossip. In addition, the Supreme Court has determined that the First Amendment requires that plaintiffs suing for libel must prove a defamatory story is false and, at a minimum, was published or broadcast with negligence.

Public officials and public figures must prove that information was published with knowing falsity or reckless disregard for the truth. In *New York Times Co. v. Sullivan (1964), the Court constitutionalized the law of libel, reasoning that the First Amendment was designed to ensure an unfettered exchange of ideas in order to facilitate social and political change. The Court said the common law of libel, which assumed a defamatory story was false, did not provide enough protection for a wide open, robust debate about government and public officials that “may well include vehement, caustic, and sometimes unpleasantly sharp attacks” (p. 270). The justices declared that political expression does not lose its constitutional protection if it is false because “erroneous statement is inevitable in free debate, and must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive” ’ (pp. 271–272). The Court said that officials should not be able to intimidate critics by threatening to sue for huge civil damage awards any more than they can by the criminal punishment of libel. In order to protect the citizen-critic adequately, the First Amendment requires that public officials prove *actual malice, interpreted by the Court as knowing falsity or reckless disregard for the truth.

In St. Amant v. Thompson (1968), the Court said proof of actual malice requires evidence that a defendant entertained serious doubts about the truth of a publication. The Court has subsequently ruled that criteria for determining actual malice can include a combination of factors such as thoroughness of an investigation, the reliability of sources, the believability of a story, deadline pressures, and motivation for publication. Fabricating a story constitutes actual malice.

In *Gertz v. Robert I. Welch (1974), the Court established that the First Amendment required that public figures—persons with widespread fame or notoriety and persons who had injected themselves into the debate about a public controversy for the purpose of influencing the resolution of the issue involved—also had to prove knowing falsehood or reckless disregard to win their libel suits. The Court’s decisions requiring public officials and public figures to prove knowing falsehood or reckless disregard for the truth has created a barrier to winning libel suits that few have been able to surmount.

The Court in Gertz also said that states could establish their own liability standard for persons who are not public figures as long as every libel plaintiff has to prove that a news medium did not exercise a reasonable amount of care during story preparation. In Philadelphia Newspapers v. Hepps (1986), the Court said that private persons trying to sue for defamation for stories about matters of public interest must prove the stories are false in addition to proving they are defamatory.

In *Milkovich v. Lorain Journal Co. (1990), the Court said that the requirement that plaintiffs prove a story is false is a major protection against libel suits for opinion critical of government, restaurants, and art. The Court said that Philadelphia Newspapers v. Hepps ensures that statements of personal opinion about public affairs that do not contain a false factual assertion are constitutionally protected. The Court also pointed to previous decisions that said that publications and broadcast stations cannot be held liable for using loose, figurative language or rhetorical hyperbole that cannot reasonably be mistaken as statements of fact. In addition, in Milkovich the Court rejected a movement in lower courts to declare all opinion constitutionally protected. The Court said that decisions such as Hepps and those protecting hyperbole provided adequate “breathing space” to allow freedom of expression “to survive” without constitutionally distinguishing between statements of opinion and statements of fact.

In a related issue, the Court has said that the First Amendment substantially protects the media when public-figure plaintiffs contend that publications or broadcasts intentionally expose persons to emotional distress. In *Hustler Magazine (p. 952) v. Falwell (1987), the Court concluded that the First Amendment prohibits media liability based on the motivation of expression since opinions about public figures spoken out of hatred, but honestly believed, can contribute to an open discussion of ideas and issues. The Court also refused to permit liability for “outrageous” speech, a requirement for establishing intentional infliction of emotional distress. The Court said that “outrageousness” in the discussion of political and social issues is so subjective that juries could impose liability merely on the basis of their dislike of the expression. The Court held that at least public officials and public figures will have to prove actual malice in suits for intentional infliction of emotional distress in order to avoid unduly restricting the debate about public affairs. Likewise, in *Time, Inc. v. Hill (1967), the Court declared that people who are newsworthy must also prove actual malice to win damages in a privacy suit for a story that is false but not defamatory.


The Court has developed a sizable body of law in the less than eighty years that it has been interpreting the Free Speech and Press Clauses of the First Amendment. While the Court has certainly not protected all expression under the umbrella of the First Amendment, it has ordinarily protected political speech, including ideas well outside of the mainstream of political thought, from governmental interference. The Court has been less protective of nonpolitical speech and speech transmitted through media other than print.

While the Court has protected speaking and writing from government control, it has been less willing to view the First Amendment as a tool to enhance the information gathering process. Still, by a strong majority, the Court has mandated access to the courts.

However, gone are all the Supreme Court justices that aggressively expanded speech and press protections in the 1960s and many of those who played a leadership role in opening up access to the courts in the 1980s. The more recent Courts have preferred no change, incremental change, or cautious change, and more balancing of values. In the near future, it is hard to see major innovation without significant pushes from the legislative or administrative branches, or the public, in the way the Court looks at major issues of free expression. The challenge will be that cases of the past are not always going to provide obvious answers to conflicts arising from the continued development of the Internet, the conversion of broadcasting from analog to digital, the increased use of fiberoptic communications in homes and business, and challenges to the protection of intellectual property.

David A. Anderson, “The Origins of the Press Clause,” UCLA Law Review 30 (1983): 456–541. Walter Berns, The First Amendment and the Future of American Democracy (1976). Margaret A. Blanchard, “Filling in the Void: Speech and Press in State Courts prior to Gitlow” in The First Amendment Reconsidered: New Perspectives on the Meaning of Freedom of Speech and Press, edited by Bill F. Chamberlin and Charlene J. Brown (1982), pp. 14–59. Vincent Blasi, “The Checking Value in First Amendment Theory,” American Bar Association Research Journal (1977): 521–649. Lee C. Bollinger and Geoffrey R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era (2001). Matthew D. Bunker, Critiquing Free Speech: First Amendment Theory and the Challenge of Interdisciplinarity (2001). Rodney A. Smolla, Free Speech in an Open Society (1992). William W. Van Alstyne, Interpretations of the First Amendment (1984).

Bill F. Chamberlin