FREEDOM OF THE PRESS
By press is usually meant all the media of mass communication although the printed media, as the oldest, is treated as the exemplar in most discussions. Free press usually means the right to publish, a right to confidentiality of sources, and a right to access. There's also a statutory right to know which was created by the Freedom of Information Act in 1966. Not only is it important to see the press as an integral part of the freedom of expression, but also as part of a system of social control whereby relationships between individuals and social institutions are adjusted. Constitutional law is concerned with the relationship of individual to society, so it's only a small step to see the significance of the press as adjuster or mediator of relationships with all the important social institutions of society - family, religion, economy, polity, law, and leisure.
Historically, the press first functioned from the top down, as house organs of the few who directed the opinions of the common people. In English common law, the press always belonged to the King. This is called the authoritarian theory of the press. With the demise of monarchy, the press came to adopt a role as partner in the search for truth, a kind of free marketplace for ideas and opinions, devoid of government control. This is the type of press that was desired by the founding fathers for the United States. It's called the libertarian theory of the press. This lecture will be mostly about this theory, and the following one.
In recent years, with media mega-mergers, some say the press has fallen back into the hands of a few. Five giant publishers control the printed media; another five companies produce all movies; and no more than three people control the broadcast media (radio and television). Not only do monopolies invite government intrusion, but they make it harder for the press to be a free marketplace of ideas. The best that can be accomplished are guarantees of equal time, and a professional sense of obligation to responsibly see that all sides are fairly presented in objective journalism. This is part of the social responsibility theory of the press. Libertarian theory and social responsibility theory are not incompatible.
Libertarian theory rests on a concept of negative liberty, "freedom from", or more precisely "freedom from external constraint." Social responsibility theory rests on a concept of positive liberty, "freedom for", or freedom to achieve goals by any ethical means necessary. Social responsibility theory adds to or corrects for things that the founding fathers neglected to consider with freedom of the press.
LIBERALISM, LIBERTARIANISM, AND THE PRESS
Liberalism is a political philosophy that change is for the better, especially rational change toward rational ends, like the perfectibility of human nature and society. Liberalism is egalitarian both to people and to ideas. Evil is seen as arising out of ignorance and lack of information. Libertarianism is a philosophy of limited government and individualism which emphasizes if a thing is not harmful to another, then no authority should restrict it. Libertarian philosophy holds that it is not the business of anyone to tell another what they should believe or not believe. Both philosophies are behind the notion of a free marketplace of ideas.
The libertarian theory of the press is that information is knowledge, and knowledge is power. It enables people to realize their potential, and since news is about people making the news, the press reminds us that society has not grown to an entity of greater importance than the people comprising it. Whether or not we regard free press as a natural or inalienable right depends upon how much we assume that people desire to know the truth, and will be set free by it. Perhaps the greatest spokesperson for these ideas was the English poet John Milton (1608-74) who said that people should have unlimited access to the ideas and thoughts of others in order to exercise their talent at reasoning between right and wrong. Milton also said that truth had an unique power of survival when allowed to assert itself freely and openly.
"Let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished. Government should keep out of the battle and not weigh the odds in favor of one side or the other." (Milton)
Milton's ideas became known as the "self-righting process" and the "open marketplace of ideas" as popularized in the publications of Thomas Paine, who also influenced the founding fathers. Paine added his own ideas about a free press being the universal reason or collective mind of a nation's people, and Thomas Jefferson added the idea that the press should serve an educational function, and also that "any government which cannot stand up to published criticism deserves to fall." By far, however, the most eloquent expression of the right to free press is from page 16 of John Stuart Mill's On Liberty:
"If all mankind minus one were of one opinion, and only one person was of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. The peculiar evil of silencing the expression of an opinion is that it robs the human race, posterity as well as the existing generation. If the opinion is right, they are deprived of the opportunity to exchange error for truth; if wrong, they lose what is almost as great a benefit - the clearer perception and livelier impression of truth, produced by its collision with error." (Mill)
Mill's ideas are also presentable in the form of four arguments against censorship:
If we silence an opinion, for all we know, we are silencing truth
A wrong opinion may contain a grain of truth necessary for finding the whole truth
Commonly held opinions tend to become prejudices unless forced to be defended
Unless commonly held opinions are contested from time to time, they lose their vitality
CAPITALISM, SOCIAL RESPONSIBILITY, AND THE PRESS
The founding fathers were also influenced by Adam Smith's notion of the "invisible hand" of capitalism. This idea had much in common with Milton's "self-righting process" but technically is an economic theory by which the actions of individuals pursuing their self-interests and security are led (by an invisible hand) to promote an end which may be no part of their intention, such as the betterment of society. The press should therefore operate within a capitalist system of free enterprise, and to this end, the founding fathers allowed advertising and entertainment content (to boost revenues and sales). Even Jefferson, who only favored educational content, supported a discounted postal rate for books and printed material (which still exists today). Capitalism was to be trusted in providing the free marketplace for ideas, opinions, news, information, and entertainment.
The problem with a press based on free enterprise is the problem of regulation. Owners and managers of the mass media must be trusted to regulate themselves and act professionally. For a true professional, there are some things money just cannot buy. The government should intervene only when the need is great and the stakes are high, and then only cautiously. It should not compete with private enterprise. In fact, government must go extra lengths to limit itself in the whole field because, in a democracy, tenure in office depends on public opinion, so the temptation for political involvement is great.
What ended up regulating the free speech market was the principle of utility. Mill and Smith were utilitarians (the greatest good for the greatest number), and a utilitarian right is somewhat different from a natural or inalienable right. Under a natural rights conception, freedom of the press involves the right to read or listen, with nothing preventing someone from throwing away the book or turning off the TV. Under a utilitarian conception, freedom of the press involves not just a right, but a duty, to read, listen, and think.
Freedom of press is grounded on the duty of the individual to their thought, their conscience. It is a moral right, which they are not free to relinquish, just as they cannot relinquish any self-interest. If one claims it for themself, they claim it for others as well, binding themself to respect the exercise of it. If one yields their claim to it, they weaken the claim of others. It is so bound up with mental existence and growth that the individual ought to claim it. It has value for both the individual and society. It is the individual's means of perpetuating himself through ideas, and society's sole source of intelligence, the seeds from which progress springs. (Blackstone)
Social responsibility therefore requires a balancing of private enterprise rights with vital social interests. The press itself should acknowledge that considerations of public welfare can override unfettered utterance, and individuals should realize that they cannot demand the media publish anything they say. There's a duty to think before anything is published in media. The right to freedom of expression is not absolute; it's conditional upon acceptance of this social duty or obligation. If a publication systematically panders to vulgarity, sensationalism, or degradation of the human race, it has forfeited its moral right to freedom of the press. Individuals are also not allowed to deliberately lie, libel, slander, or defame other individuals because doing so forfeits their social bond with others. Lies which are honestly mistaken beliefs, however, should be tolerated. Mischief must face its consequences.
SUPREME COURT DECISIONS ON FREE PRESS
As the preceding has been meant to illustrate, free press cases represent a whole separate area of First Amendment jurisprudence. You can't, for example, simply take the tests for free speech and apply them to free press, as if the press were simply the spoken word in print. With the exception of the "clear and present danger" test, the Supreme Court has rarely done that. In fact, it's difficult to say if there's any hard-and-fast rules or tests in media law. Because it's a First Amendment area, the Court follows the practice of ascribing strict scrutiny to each case, and the cases brought before it are not typically your small-time pamphleteer, but big, multinational, media conglomerates, so the debates are more about business than individual rights. The Court also takes a media-by-media approach to cases. What applies to books may not apply to broadcasting (radio and television) which may not apply to music or film, which may not apply to the Internet. Broadcasting is the most regulated medium because the FCC controls the airwaves; and the Internet is the least regulated because the Court doesn't believe people see anything they don't want to see.
Probably the closest thing that ties it all together is the issue of censorship, or what's called prior restraint in Constitutional Law. There's other forms of censorship for after a publication has gone to press, but the U.S. Supreme Court has always taken its strongest stance on any form of government content restriction before publication has occurred, this being seen as an inherent part of the right to publish. The essence of censorship is then seen as when a law is on the books forbidding anything scandalous or detrimental from being published, or when the government finds out the media plans to go public with something and orders them to stop, punishable by contempt, fine or imprisonment. Attempting to stop something already in progress is precisely what happened with the leading case in this area, which goes back to 1931 when an editor named Jay Near began printing a series of anti-Semitic articles alleging that Jewish gangsters were controlling the mayor and city officials of Minneapolis.
Near v. Minnesota (1931) - made it unconstitutional to shut down a newspaper, magazine, or periodical simply because it started publishing something scandalous, defamatory, or malicious. The chief purpose of the free press guaranty is to prevent prior restraints on publication, and the only recognized limitations are with wartime secrets, obscenity, incitement to riot, and calling for violent overthrow of the U.S. To extend those limits to scandal or charges of malfeasance in office is but one step away from a system of censorship.
Implicit in the Near decision is the Court's view that the law of defamation, applied against information media defendants, shall be construed and applied in such a way that their special responsibility for fairness and avoidance of malice, negligence, and incompetence shall be given due weight. To further understand this special treatment of the press, it may be insightful to look at the following two cases, which involve one of the only recognized limitations (wartime secrets).
New York Times v. U.S. (1971 -The Pentagon Papers Case) - On national security grounds, the government tried to stop publication of a classified document called "History of U.S. Decision-Making on Vietnam Policy" which the NY Times had obtained (stolen) via one of the study's contributors, Daniel Ellsberg. A federal appeals court supported the ban. Not only did the case involve the right to confidentiality of sources, but also the whole notion of getting a "scoop" on the story because the Washington Post was racing the NY Times to press. The Court ruled that any use of the judiciary to order constraint makes a shambles out of the First Amendment; that responsible journalists ought to have known better, and reported stolen classified material to authorities, but since the appellate courts have already acted injudiciously, the Supreme Court authorized its publication.
The issue of government secrets has come up time and time again with the CIA, the Grenada invasion of 1983 (in which press were barred from the island), and the Persian Gulf War (1991) in which the press were controlled close to 100%. Too many other examples, too numerous to mention, involved attempts by one media or another to "scoop" the competition. In the year 2000, one of the TV networks called the Presidential Election too soon, drawing attention once again to the fine line of journalistic responsibility that makes up freedom of the press.
Lest the reader think the law allows the press to do anything, consider the following case where the Court drew the line on freedom of the press:
U.S. v. Progressive, Inc. (1979 - "The H-Bomb Secret, How We Got It, and Why We're Telling" Case) - Progressive magazine announced plans to publish instructions, complete with sketches, on how to build an H-bomb in your basement, and the government sought to stop publication and threatened to obtain every copy. The reporter who wrote the article had apparently visited several DOE facilities and deduced critical information from sensitive documents in plain view or from interviews with DOE employees. In a compromise gesture, the government offered to ban only 20% of the article, but the magazine refused, and instead encouraged a homemade H-bomb contest through the Chicago Tribune. The Supreme Court came down heavily, ruling that the lesser of two evils involves infringing upon freedom of the press for the sake of avoiding thermonuclear annihilation.
The above case draws attention to a reporter's right to access and highlights what the Court calls the "government right to withhold information that is not a matter of public record." The ways a judiciary imposes sanctions on the media include "injunctions" (stop orders, cease and desist orders) and "gag orders" (used mainly to avoid adverse pretrial publicity and rely upon voluntary cooperation by the press).
A reporter's right to access is a criminal justice issue because it involves various immunities and privileges with respect to police reports, crime scenes, victim data (names, photos), offender data, and prisoner interviews. Reporters have always been granted behind-the-scene privileges by the criminal justice system, but it's a complex area of law which intermingles criminal procedure, evidence, and freedom of the press. For example, a reporter's right to access and the public's need to know allow for pretrial publicity, but under evidence rules, failure by a lower court to do something about adverse pretrial publicity is grounds for overturning a conviction in higher court. As another example, reporters are exempt from having to reveal the confidentiality of their sources in trial court, but they must reveal their sources to a Grand Jury. So-called "shield laws" protect the confidentiality of sources in about 30 states; there's no federal shield law. So-called "sunshine laws" grant reporters access to the records of about 50 federal agencies, but there are exemptions.
The current status of settled law in this area is a hodgepodge of various practices. Some jurisdictions, as many know, treat reporters with little or no respect. Other jurisdictions, however, will go so far as to allow televisions in the courtroom or behind prison walls. Let's take a look at the variety of decisions in this area.
Sheppard v. Maxwell (1966) - set the rule that the right to a fair trial always trumps the right to report about it, and all criminal procedures before the trial.
Cox Broadcasting Corp. v. Cohn (1975) - allowed the TV broadcast of the name of a rape victim because the reporter had lawfully inspected indictment records in the Clerk's office.
Zurcher v. Stanford Daily (1978) - established that newspapers enjoy no special immunity from searches of their premises by police with warrants. In 1980, however, Congress passed a privacy protection act requiring police to obtain duces tecum subpoenas for such searches. Reporters have enjoyed no special immunity from grand juries since Branzburg v. Hayes (1972).
Houchins v. KQED, Inc. (1978) - established that the press enjoys no more privileges than members of the general public in access to jails and prisons to interview prisoners, even though executions are matters of great public importance.
Smith v. Daily Mail Publishing Co. (1979) - allowed the press to publish the names of juvenile offenders, which is normally confidential information, because the information was obtained by lawfully monitoring police radio frequencies.
Richmond Newspapers, Inc. v. Virginia (1980) - ruled in favor of the First Amendment trumping the Sixth Amendment, holding that trial judges can not completely close a trial to the media.
Florida Star v. B.F.J. (1989) - found the publication of a rape victim's name to NOT be constitutional because the reporter viewed the name negligently left on police reports laying around at the police department.
Simon & Schuster, Inc. v. NY State Crime Victims Board (1991) - struck down what was known as the Son of Sam law which required any profits from book or movie deals by serial killer, David Berkowitz, from being put in a victim's trust fund.
Gentil v. Nevada (1991) - An attorney can be disciplined for making out-of-court statements to the media that prejudice a proceeding. However, judicial "gag orders" must give fair notice of what statements can be made to the press and what statements cannot be made.
With the possible exception of Sheppard v. Maxwell and its apparent overturning in Richmond v. Virginia, it should not be inferred that the Supreme Court has flip-flopped in its decision making. Certainly, the Justices do not think that, and most scholars don't either. The charitable way of saying it is that the Court has walked a fine line in balancing a complicated set of rights. It does, however, raise the question of whether the Court has been consistent with freedom of the press.
We've covered libel in the Free Speech lecture, but as a reminder, libel involves a defamation of the character that has occurred by publication of a known falsehood. Libel and libelous statements are beyond First Amendment protection. Libel is a matter of state law. In order to be litigated and won, it has to identify its victim, must be communicated so that more than one person hears/sees/reads it, contain an element of fault (actual malice or some other component of the New York Times test), and must be proven to have actually (not potentially) harmed somebody.
While truth is the only necessary and sufficient defense to libel, substantial truth and privilege are other defenses. Legislative proceedings, for example, are privileged, and that's why Joe McCarthy said what he did during McCarthyism. Fair comment is also sometimes a defense, which means opinion about the performance of a public figure. Public figures are expected to be able to take more flack. Over the years, the press has been involved in several libel cases, most settled at the district or appellate level, a few making it to the Supreme Court.
Washington Post v. Kennedy (1924 F. 2nd) - involved an attempted reference to an individual so vague that it could refer to more than one person. The court said it was still libel.
Janklow v. Newsweek (1986 F. 2nd) - said that the more specific the assertion, the more actionable the libel, but both literary and public context needs to be taken into consideration.
Philadelphia Newspapers v. Hepps (1986) - made publishers motives no longer relevant if statement is true, but still relevant if statement is false.
Milkovish v. Lorain Journal Co. (1990) - held that expression of a pure opinion, as in a sports column, is not actionable, but if the opinion carries a false factual implication, it is.
Dodds v. ABC (1998 F. 3rd) - held that judges could be called incompetent.
Some 95-100% of lawsuits against the news media are run-of-the-mill stories, not treacherous yarns. Libel lurks in such innocent places as birth notices, wedding announcements, and pictures with captions. A newspaper can be held responsible for defamation in a variety of ways. Libel is written and slander is spoken, but many states (Illinois, for example) make no distinction between the two. Other states (like California) distinguish between media libel which is accompanied by explanation and media libel which goes uncorrected. In most places, the media is accountable for not repeating the libelous statements of another because doing so would engage the media in a third-party lawsuit.
There are certain reporter privileges which need to be understood:
Opinion privilege -- only statements that can be proven true or false are capable of being defamatory. So-called editorial or opinion pieces in the media cannot be defamatory. The main test is the Milkovich test (Milkovich v. Lorain Journal 1990) which asks whether the average reader wouldinfer factual content. If an article mentions undisclosed or anonymous sources, it must be inferred as factual.
Fair comment and criticism -- comments on matters of public interest and concern, provided they are made honestly and fairly and not maliciously, cannot be defamatory. This usually means that book and movie reviews as well as art and architecture criticism can be engaged in without fear of lawsuit.
Fair report -- any fair and accurate report of a public proceeding cannot be grounds for a defamation suit. This usually refers to the so-called quoting out-of-context instance because the media is looking for sound bites or short excerpts and cannot afford to publish complete transcripts. There's no one main test for determining when something is out of context, but most states judges use a balancing test to match newsworthiness with potential for defamation.
Neutral reportage -- this privilege is available in some states only when the plaintiff is a public figure or involved in a public controversy. New York doesn't recognize such a privilege. The 2d Cir test comes from Edwards v. National Audubon Society 1977 which asks whether the reporter appears to espouse or concur in the charges made by others.
The media enjoy greater protection when it covers the affairs of public officials. Such people must prove actual malice to successful win their defamation claims. Private public figures are another matter with some states requiring proof of malice, others using a "gross irresponsibility" standard, and still others allowing negligence and error. No state has laws on defamation of the dead or on groups of people where the members cannot be easily identified.
When the media publishes a potentially libelous story, a KILL order is transmitted over the wire to remove problematic copy. Other orders that come over the wire include WITHHOLDS, ELIMINATIONS, and CORRECTIVES. News media bureau chiefs are responsible for seeing that these orders get distributed and followed.
College and high school media are dealt with differently from other "adult" public media. The issue in general seems to involve the question of whether schools act as a trial run for public life in a democracy, or whether they are special, protected environments. Right now, the conception of protected environment is the predominant attitude of the courts. Private schools are not affected, and their students are not protected, in any event.
In the 1960s, rulings favored the student media. Now, they tend to favor the administrators. College cases are rare. High school precedents are much more common and being used as the basis for college-media decisions. The most important cases are the following:
Tinker v. Des Moines (1969) - Neither students nor teachers shed their Constitutional rights to freedom of expression at the schoolhouse gate. Disruption of the educational process or violation of the rights of others would heavily favor administrative regulation.
Hazelwood School District v. Kulhmeier (1988) - Educators do not offend the First Amendment by exercising editorial control over style and content of school-sponsored activities so long as their actions are reasonably related to legitimate pedagogical concerns.
Kincaid v. Gibson (1997) - This case attempts to apply the Hazelwood rule to Kentucky State University. It's a landmark case for public-college media. Visit the Student Press Law Center for updates.
As the fastest growing media, the Internet poses some unique Constitutional problems. It's not as "invasive" as radio or television, and users seldom encounter content "by accident." It's probably more akin to print than any other media. However, there's no doubt that it contains pornographic sites, and this was exactly the issue in Reno v. American Civil Liberties Union (1997) which challenged the constitutionality of the Communications Decency Act.
The Court found language ("indecent" and "offensive") in the CDA to be vague, and it thought that the harsh criminal penalties for providing minors access to sexually explicit content would have a chilling effect on legitimate expression, especially for an estimated 200 million users. It therefore found by a 7-2 decision that there should be no regulation of content on the Internet.
Justices O'Connor and Rehnquist dissented, advocating some kind of "zoning law" to classify sites on the Internet. Since 1997, both federal and state governments have made repeated attempts to pass laws which will stand constitutional muster. Meanwhile, European nations have given law enforcement enormous powers of Internet enforcement, and Asian nations have simply blocked access to "Americanized" Internet culture. Visit the CyberSpace Law Institute for current events in this area.
Much of current cyberspace law involves the right to privacy. The first form of invasion to be recognized by the courts involved misappropriation of identity, or identity theft. Similar rights are emerging under the notion of intrusion upon seclusion, which involves surreptitious surveillance as in the form of cookies or other web technologies that track one's movements on the Web. Morphed or altered photos are another area of concern. By far, however, copyright and intellectual property are the fastest-growing concerns.
Copyright is the right of authors to control the reproduction and use of their creative expressions in tangible form. The Internet is considered a tangible form, but it's also a forum for ideas, and ideas are not subject to copyright. Copyright only applies to literary, musical, graphic, artistic, and intellectual concepts, so the debate is over how intellectual an idea is on the Internet. There are, in addition, numerous fair use exceptions to copyright law, especially as they relate to intellectual property:
If the intellectual matter is informational rather than establishing the author as an intellectual with original ideas, fair use is allowed
If the intellectual material is published (on the Internet) and no attempts have been made to conceal it or render it as unpublished, fair use is allowed
If only a small portion of the intellectual material is used, fair use is allowed
If reproduction does not decrease any potential revenue or market for the originator of the intellectual property, fair use is allowed
Proper attribution or credit to the source is no defense to copyright infringement. Permission from the copyright holder is a defense.
An Unfettered Press (USIA doc)
Beyond the Communications Decency Act
Bringing Responsibility to the Media (MRC)
Center for Media and Public Affairs
Fairness and Accuracy in Reporting
Freedom Forum's Free Press/Fair Press
The Free Expression Clearinghouse
Preserving Free Expression in Music
Ralph McCoy's Annotated Bibliography of Freedom of the Press
Reporter's Committee for Freedom of the Press
Student Press Law Center
Thomas Jefferson Center for the Protection of Free Expression
Bollinger, L. (1991) Images of a Free Press. Chicago: Univ. of Chicago Press.
Campbell, D. (1994) Free Press v. Fair Trial. Westport: Praeger.
Carter, B. (1993) The First Amendment and the Fifth Estate. Westbury: Foundation Press.
Daly, J. (1978) The Press and the Courts. Washington DC: American Enterprise Institute.
Flink, S. (1998) Sentinal Under Seige: The Triumphs and Troubles of America's Free Press. Boulder: Westview.
Goldstein, N. (ed.) (2000) The AP Stylebook and Briefing on Media Law. Cambridge: Perseus Publishing.
Kelly, S. (1978) Access Denied: The Politics of Press Censorship. Beverly Hills: Sage.
Kennedy, S. (1999) Free Expression in America. NY: Greenwood.
Levy, L. (1985) Emergence of a Free Press. NY: Oxford Univ. Press.
Overbeck, W. (2000) Major Principles of Media Law. NY: Harcourt College Publishers.
Reeves, R. (1999) What the People Know: Freedom and the Press. Cambridge: Harvard Univ. Press.
Siebert, F., T. Peterson & W. Schramm (1956) Four Theories of the Press. Urbana: Univ. of Illinois Press.
Last updated: 06/25/03
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