Freedom of the Press

In 1791, the newly formed United States adopted the first ten amendments to the U.S. Constitution, collectively known as the Bill of Rights. Authored by James Madison, these amendments were designed to safeguard individual liberties and restrict governmental power.

The First Amendment protects these democratic ideals and reads in relevant part, “Congress shall make no law…abridging the freedom of speech, or of the press…”

Thus, these First Amendment rights to free speech and a free press stem from a limitation on Congress, our federal legislature. Through the passage of the Fourteenth Amendment and its interpretation of the First Amendment, the U.S. Supreme Court has determined this limitation extends beyond Congress.

State Action and the First Amendment

In 1925, the Court decided Gitlow v. New York. This landmark case was the first to address a state restriction on First Amendment rights.

Gitlow, a socialist activist, published and disseminated thousands of copies of a "Left Wing Manifesto" that advocated the violent overthrow of the government. Consequently, Gitlow was convicted under a state anarchy law that criminalized speech advocating the forceful overthrow of the government.

Gitlow challenged the constitutionality of the state law. He contended that the First Amendment constraints on government regulation applied to the states and that the state law violated his First Amendment rights.

The Court affirmed the rights to free speech and a free press as fundamental constitutional rights. It held that the due process clause of the Fourteenth Amendment protects these rights from restrictions by state and local government. This is known as the doctrine of incorporation.

Although the Gitlow Court determined these First Amendment constraints apply to the states, it still upheld the state restriction on language that threatened the establishment of government and advocated for its violent overthrow.

The constitutional rights to free speech and a free press are not without limits. They need to be weighed against the interests of society and government. Consequently, the Supreme Court has set forth various permissible limitations on speech and the press.

Likewise, it has developed frameworks and legal standards for analyzing whether government action is consistent with the First Amendment. These apply to government action of any kind and at any level. We commonly refer to government action in this context as state action.

Private Regulation of Speech

The First Amendment free speech and free press clauses mainly restrict government regulation of private speech and the press. They don’t restrict government regulation of government speech.

Likewise, these First Amendment constraints don’t generally extend to the actions of private entities. However, the Supreme Court has carved out some narrow exceptions that make some private actions subject to First Amendment constraints.

Does the First Amendment Apply to Social Media?

The emergence of social media as “the modern public square” also raises new issues. Social media sites are typically owned and operated by private entities. This means they have their own First Amendment rights.

Commercial speech by corporations is afforded its own protection by the First Amendment. Therefore, private owners of social media sites can generally regulate content on their sites. However, the role the government can and should play in regulating content on these sites is a primary focus of developing caselaw.

How Do the Courts Determine if a Law Violates the First Amendment’s Freedom of the Press?

When a government action is alleged to violate the First Amendment, the courts play a critical role as arbiters. The courts may determine that a state action or government restriction unconstitutionally violates the First Amendment based on several legal theories.

One such theory is the doctrine of prior restraint. Prior restraint generally refers to government restrictions on speech or expressions before they’re expressed or published. Prior restraint most commonly pertains to published materials and often involves a free press discussion.

The Supreme Court has established that First Amendment speech can include conduct and non-speech expression. For example, messaging on a t-shirt or refusing to salute the American flag are both considered speech under the First Amendment.

Although not all prior restraints violate the First Amendment, they are considered particularly dangerous because they mirror the type of government censorship the Bill of Rights sought to avoid. Some examples of prior restraint include:

• A law prohibiting the publication of certain information

• An injunction restricting someone from speaking about a particular topic

• A regulatory scheme that mandates pre-publication government approval of communications 

The Supreme Court first established the doctrine of prior restraint in the 1931 Near v. Minnesota case.

Can the Government Ever Legally Censor the Press?

The Near Court dealt with a restriction on defamation and other content in publications. The law allowed the state to enjoin (prevent) violators from future publication.

The Court explained that the very meaning of a free press is the absence of prior restraints on publications. It found the statutory scheme captured “the essence of censorship.”

Because the law constituted a prior restraint, the Court held it was an unconstitutional infringement on the First Amendment right to a free press. This marked the beginning of the prior restraint doctrine.

The Near Court also recognized “exceptional cases” in which prior restraint was permissible, including:

• Obscenity

• Incitements to violence

• Ongoing war

Generally speaking, however, they are deemed unconstitutional.

What Does "the Press" Mean in the First Amendment?

It may seem that there’s at least a significant overlap between freedom of the press and free speech — or that a free press just means freedom of speech for media outlets. It’s important to remember, however, that freedom of the press functions as a limitation on government regulation.

This means the right doesn’t just protect press entities. It also protects the public’s right to receive information, particularly about government affairs and other matters of public concern. Indeed, several Supreme Court cases have considered these two First Amendment rights of press entities without really distinguishing between them.

Conversely, the Supreme Court has directly addressed the distinction. For instance, in 1978, the Court considered whether the First Amendment grants broader freedoms to the institutional press compared to private individuals or entities. Essentially, does the press have more liberty from government restrictions than non-press entities?

According to Justice Stewart, we can’t ignore that the First Amendment explicitly includes press freedom and the free speech clause. He contended that this demonstrates the American press's important societal role as a check on government power. As a result, he explained, the Court’s interpretation of this freedom should consider the unique needs the press may have in performing that function.

However, in First National Bank of Boston v. Bellotti, Chief Justice Burger declared that the Court hadn’t settled whether the free press clause means that the “institutional press” is entitled to more freedom from government regulation than others.

However, the Supreme Court has resolved whether the free press clause can compel the government to provide the press with information not available to the public. In general, it can’t.

How Has the First Amendment Impacted News Media?

Likewise, in Branzburg v. Hayes, the Court determined the First Amendment doesn’t entitle the press to a different kind of protection or treatment from others. The Branzburg Court addressed whether reporters and other members of the press were entitled to privilege under the law. The case consolidated matters from California, Kentucky, and Massachusetts.

The central issue was whether reporters could be compelled to testify in criminal cases about information they obtained with a promise of confidentiality. The Court determined they could.

It reasoned that reporters have no more access to governmental affairs than the average population. And the average population doesn’t enjoy testimonial privilege in criminal matters. As a result, the Court held that reporters may be compelled to testify and reveal sources or information they obtained confidentially.

New York Times Co. v. Sullivan

However, the Court expanded media protection under the First Amendment in another landmark case, New York Times Co. v. Sullivan. In this case, the Court reviewed a civil rights fundraising ad published with some inaccuracies. The ad criticized an Alabama police department. Its commissioner sued for libel, claiming the false statements damaged his reputation.

The Court determined that the constitutional rights to free speech and a free press extend to publishing false or libelous statements about public officials. The Court explained that open discourse about the government and public affairs is critical to our First Amendment protections.

 As Justice Brennan noted, “debate on public issues should be uninhibited, robust and wide-open.” Spirited criticism and even errors are some of the prices we pay for our freedoms in a democracy.

As a result, the Court established an actual malice test for media outlets. Public officials seeking to recover for libelous or false content published about them would have to satisfy a very difficult standard. Specifically, they needed to prove the publication acted with actual malice, a much higher bar than negligence.

Other Supreme Court Decisions on the Free Press

In 1966, the Court decided Mills v. Alabama. The Mills Court evaluated a state law criminalizing the publication of election-day editorials. The Court struck down the law as inconsistent with our free speech and a free press rights. It explained that the primary purpose of the First Amendment is to protect open discourse about government and political affairs.

There is also a fair amount of Supreme Court caselaw that assigns the press a higher degree of constitutional protection. This is because of its role in providing and distributing news and information.

In Miami Herald Publishing Co. v. Tornillo, for example, the Court reviewed a Florida state law compelling newspapers to print certain responses from political candidates. The Court struck down the regulation as unconstitutional. It explained that the First Amendment protects a print media outlet’s editorial autonomy over what to print.

Likewise, in Landmark Communications v. Virginia, the court reviewed a Virginia law criminalizing the disclosure of information about a state commission’s confidential inquiries and investigations into judges. A newspaper published information from a commission hearing related to a confidential investigation into a state judge, and the state criminally sanctioned the paper.

The paper sued, asserting that the state law unconstitutionally violated its First Amendment rights. The Supreme Court agreed. It reasoned that the disclosure was about government affairs and served a public interest. The state also had an interest in preserving the confidentiality of the hearings. However, the state interest didn’t justify this degree of infringement upon First Amendment protections.

In CBS, Inc. v. Federal Communications Commission (FCC), the Court dealt with a broadcast media regulation. The Court’s decision illustrates a distinction between its treatment of print media outlets and broadcast media outlets.

In this case, the Court upheld a regulation compelling broadcast outlets to provide reasonable airwave access to federal political candidates. It explained that the public’s First Amendment rights, together with the candidates’ First Amendment rights, trumped the First Amendment rights of the broadcasters.

How Does the First Amendment Protect a Free Press in Times of National Security Concerns?

Lastly, New York Times Co. v. United States marked another landmark Supreme Court decision addressing prior restraint. This case is commonly referred to as the Pentagon Papers case. Here, a defense analyst leaked copies of classified government study papers to the New York Times and the Washington Post.

The Nixon administration sought an injunction to block the publication of the leaked papers. It claimed that publication of the papers violated the Espionage Act, a law passed shortly after the US joined World War I. It cited national security concerns as the reason for the prior restraint.

The Court determined that the administration failed to establish that the national security concerns raised by publishing the leaked material outweighed the papers’ First Amendment rights. This case is widely regarded as a free press victory against government censorship.

The First Amendment rights to free speech and a free press are essential to American democracy. Without these protected freedoms, our free and unfettered discourse on government affairs and other matters of public concern would be compromised. The evolution of Supreme Court case law on these constitutional rights often affirms the unique role a free press plays in gathering and disseminating information.