Freedom of the press is considered one of the most important constitutional guarantees. At least theoretically, it sets up the free media as a watchdog for government – protecting the press from government control. As Supreme Court Justice Hugo Black wrote: “The press was to serve the governed, not the governors." But as national security concerns and new technologies arise, the way the courts think about freedom of the press has changed.
“Congress shall make no law…abridging the freedom of speech, or of the press;"
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Some have raised the question of whether the free speech clause and the free press clause are coextensive, or whether one reaches where the other does not. It has been much debated, for example, whether the institutional press is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.1 But, as Chief Justice Burger wrote: The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others.2
Several Supreme Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel the government to furnish information or otherwise give the press access to information that the public generally does not have.3 Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.4 Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.5 Yet, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to deference that others are not entitled to—that its role constitutionally entitles it to governmental sensitivity, to use Justice Stewart's word.6 What difference such sensitivity might make in deciding cases is difficult to say.
The most interesting possibility lies in the First Amendment protection of good-faith defamation.7 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the constitutional theory of free speech gives an individual any immunity from liability for libel or slander.8 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,9 but the Court's decision in First National Bank of Boston v. Bellotti that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state, regulations causes the evaporation of the supposed conflict between speech clause protection of individuals only and press clause protection of press corporations as well as of press individuals.10 The issue, the Court wrote in Bellotti, was not what constitutional rights corporations have but whether the speech that is being restricted is protected by the First Amendment because of its societal significance. Because the speech in Bellotti concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti's emphasis upon the political nature of the contested speech, it is clear that the same principle—the right of the public to receive information—governs nonpolitical, corporate speech.11
News organizations have claimed that the First Amendment compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.12 The argument for a limited exemption to permit reporters to conceal their sources and to keep confidential certain information they obtain and choose at least for the moment not to publish was rejected in Branzburg v. Hayes13 by a closely divided Court. Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.14 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.15
The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.16 Although efforts in Congress have failed, 49 states have done so—33 (plus the District of Columbia) by statute and 16 by court decision, with Wyoming the sole holdout.17 As for federal courts, Federal Rule of Evidence 501 provides that the privilege of a witness shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.18 The federal courts have not resolved whether the common law provides a journalists' privilege.19
Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation.20 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur, and it observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.21
Conflict between constitutional rights is not uncommon. One of the most difficult to resolve is the conflict between a criminal defendant's Fifth and Sixth Amendment rights to a fair trial and the First Amendment's protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity22 and during trials that were media spectaculars23 have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of gag orders on press publication of information directly confronts the First Amendment's bar on prior restraints,24 although the courts have a good deal more discretion in preventing the information from becoming public in the first place.25 Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pre-trial proceedings, and the Court has addressed the issue.
When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings,26 a major debate flowered concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend trials.27 The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia,28 but the Justices could not agree upon a majority rationale that would permit principled application of the holding to other areas in which access is sought.
Chief Justice Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices (and one of them in a separate concurrence drew conclusions probably going beyond the Chief Justice's opinion).29 Basic to the Chief Justice's view was an historical treatment that demonstrated that trials were traditionally open. This openness, moreover, was no quirk of history but an indispensable attribute of an Anglo-American trial. This characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the therapeutic value to the public of seeing its criminal laws in operation, purging the society of the outrage felt at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained. Thus, a presumption of openness inheres in the very nature of a criminal trial under our system of justice. The presumption has more than custom to command it. In the context of trials the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.30
Justice Brennan, joined by Justice Marshall, followed a significantly different route to the same conclusion. In his view, the First Amendment has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is not only 'the principle that debate on public issues should be uninhibited, robust, and wide-open,' but the antecedent assumption that valuable public debate—as well as other civic behavior—must be informed. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself but also for the indispensable conditions of meaningful communication.31
The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government's or the defendant's interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court32 involved a statute, unique to one state, that mandated the exclusion of the public and the press from trials during the testimony of a sex-crime victim under the age of 18. For the Court, Justice Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness33 and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right is not absolute, but in order to close all or part of a trial government must show that the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.34 The Court was explicit that the right of access was to criminal trials,35 so that the question of the openness of civil trials remains.
The Court next applied and extended the right of access in several other areas, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I36 that historically voir dire had been open to the public, and that [t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.37 No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, e.g., in camera consideration of jurors' requests for protection from publicity. In Waller v. Georgia,38 the Court held that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,39 and noted that the need for openness at suppression hearings may be particularly strong because the conduct of police and prosecutor is often at issue.40 And, in Press Enterprise II,41 the Court held that there is a similar First Amendment right of the public to access to most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused's Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be specific findings demonstrating that first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.42 Openness of preliminary hearings was deemed important because, under California law, the hearings can be the final and most important step in the criminal proceeding and therefore may be the sole occasion for public observation of the criminal justice system, and also because the safeguard of a jury is unavailable at preliminary hearings.43
1. Houchins v. KQED 438 U.S. 1, 17 (1978) (concurring opinion). Justice Stewart initiated the debate in a speech, subsequently reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 798 (1978) (Chief Justice Burger concurring).
2.435 U.S. at 798. The Chief Justice's conclusion was that the institutional press had no special privilege as the press.
3. Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 U.S. 589 (1978). The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
4. Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper's breach of promise of confidentiality).
6.E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See also Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978), and id. at 568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582–84 (Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). Yet the Court has also suggested that the press is protected in order to promote and to protect the exercise of free speech in society at large, including peoples' interest in receiving information. E.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966); CBS v. FCC, 453 U.S. 367, 394–95 (1981).
7. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See discussion of Defamation, infra.
8.Stewart, Or of the Press, 26 Hastings L. J. 631, 633–35 (1975).
9. In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979), the Court noted that it has never decided whether the Times standard applies to an individual defendant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by the Court.
10. 435 U.S. 765 (1978). The decision, addressing a question not previously confronted, was 5-to-4. Justice Rehnquist would have recognized no protected First Amendment rights of corporations because, as entities entirely the creation of state law, they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices White, Brennan, and Marshall thought the First Amendment implicated but not dispositive because of the state interests asserted. Id. at 802. Previous decisions recognizing corporate free speech had involved either press corporations, id. at 781–83; see also id. at 795 (Chief Justice Burger concurring), or corporations organized especially to promote the ideological and associational interests of their members. E.g., NAACP v. Button, 371 U.S. 415 (1963).
11. Commercial speech when engaged in by a corporation is subject to the same standards of protection as when natural persons engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533–35 (1980). Nor does the status of a corporation as a government-regulated monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566–68 (1980).
13. 408 U.S. 665 (1972). The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them. Id. at 682.
14. 408 U.S. at 690–91. The cases consolidated in Branzburg all involved grand juries, so the reference to criminal trials should be considered dictum.
15. Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court's opinion. Justice Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available if, in a particular case, the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement. 408 U.S. at 710. Justice Stewart's dissenting opinion in Branzburg referred to Justice Powell's concurring opinion as enigmatic. Id. at 725. Judge Tatel of the D.C. Circuit wrote, Though providing the majority's essential fifth vote, he [Powell] wrote separately to outline a 'case-by-case' approach that fits uncomfortably, to say the least, with the Branzburg majority's categorical rejection of the reporters' claims. In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006).
[C]ourts in almost every circuit around the country interpreted Justice Powell's concurrence, along with parts of the Court's opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context. Association of the Bar of the City of New York, The Federal Common Law of Journalists' Privilege: A Position Paper (2005) at 4-5 (citing examples).
16. 408 U.S. at 706.
17. The 33rd state statute enacted was the State of Washington's, which took effect on July 22, 2007. See the website of the Reporters Committee for Freedom of the Press for information on the state laws. The greatest difficulty these laws experience is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied sub nom. New York Times v. New Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay).
18. Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law.
19. See, e.g., In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia is not of one mind on the existence of a common law privilege).
20. Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978). Justice Powell thought it appropriate that a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at 577.
21. Congress enacted the Privacy Protection Act of 1980, Pub. L. No. 96-440, 94 Stat. 1879, 42 U.S.C. § 2000aa, to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations.
25. See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (disciplinary rules restricting extrajudicial comments by attorneys are void for vagueness, but such attorney speech may be regulated if it creates a substantial likelihood of material prejudice to the trial of a client); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) (press, as party to action, restrained from publishing information obtained through discovery).
27. DePasquale rested solely on the Sixth Amendment, the Court reserving judgment on whether there is a First Amendment right of public access. 443 U.S. at 392.
28. 448 U.S. 555 (1980). The decision was 7 to 1, with Justice Rehnquist dissenting, id. at 604, and Justice Powell not participating. Justice Powell, however, had taken the view in Gannett Co. v. DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials.
29. See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 (1980) (Justice Stevens concurring).
30. 448 U.S. at 564–69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise II).
31. 448 U.S. at 587–88 (emphasis in original, citations omitted).
32. 457 U.S. 596 (1982). Joining Justice Brennan's opinion of the Court were Justices White, Marshall, Blackmun, and Powell. Justice O'Connor concurred in the judgment. Chief Justice Burger, with Justice Rehnquist, dissented, arguing that the tradition of openness that underlay Richmond Newspapers, was absent with respect to sex crimes and youthful victims and that Richmond Newspapers was unjustifiably extended. Id. at 612. Justice Stevens dissented on the ground of mootness. Id. at 620.
33. That there was no tradition of openness with respect to the testimony of minor victims of sex crimes was irrelevant, the Court argued. As a general matter, all criminal trials have been open. The presumption of openness thus attaches to all criminal trials and to close any particular kind or part of one because of a particular reason requires justification on the basis of the governmental interest asserted. 457 U.S. at 605 n.13.
34. 457 U.S. at 606–07. Protecting the well-being of minor victims was a compelling interest, the Court held, and might justify exclusion in specific cases, but it did not justify a mandatory closure rule. The other asserted interest—encouraging minors to come forward and report sex crimes—was not well served by the statute.
35. The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the words at one point. 457 U.S. at 605.
37. 464 U.S. at 510.
38. 467 U.S. 39 (1984).
39. Gannett Co. v. DePasquale, 443 U.S. 368 (1979), did not involve assertion by the accused of his 6th Amendment right to a public trial; instead, the accused in that case had requested closure. [T]he constitutional guarantee of a public trial is for the benefit of the defendant. Id. at 381.
40. 467 U.S. at 47.
42. 478 U.S. at 14.
43. 478 U.S. at 12.