Regulation of the Media Under the First Amendment

The Bill of Rights consists of the first ten amendments to the U.S. Constitution. The Framers created these measures to safeguard civil liberties and constrain governmental power.

The First Amendment reflects these democratic ideals and reads in relevant part:

“Congress shall make no law…abridging the freedom of speech, or of the press…”

By its terms, the First Amendment begins as a prohibition on Congress, our federal legislature. In other words, Congress may not pass laws that infringe upon these freedoms.

The U.S. Supreme Court serves as the Constitution’s ultimate authority and interpreter. The Court has determined this prohibition extends beyond Congress through the passage of the Fourteenth Amendment and the doctrine of incorporation.

The First Amendment protects these rights from government interference of any kind and at any level. In other words, it restricts the government’s ability to regulate the private exercise of these rights.

 Government action that restricts these freedoms may take many forms, including:

• Laws

• Court injunctions

• State regulatory schemes

• Public school policies

• Regulatory agency action

We often refer to government action in this context as state action.

Legal Standards

The Constitutional rights to free speech and a free press aren’t absolute. Restrictions on these freedoms must be balanced against legitimate government interests, like maintaining safety and order.

The Supreme Court has developed legal standards and frameworks for determining whether government restrictions that burden First Amendment rights are constitutional. They generally weigh the government interests served by the restriction against the First Amendment rights burdened by it. These standards often refer to government interests as state interests.

Strict scrutiny is the most difficult standard to meet. To pass constitutional muster, a restriction must be required to serve a compelling state interest in the least restrictive manner available.

Content-based restrictions are typically subject to a strict scrutiny standard of review. This is because, at their core, the constitutional rights to free speech and a free press protect against government suppression of certain ideas and viewpoints.

Accordingly, the First Amendment protects the expression of controversial political perspectives, dissatisfaction with public affairs, and advocacy of polarizing change.

Free Speech and a Free Press

Freedoms of speech and the press often overlap. The right to a free press is based on the idea that the government shouldn’t restrict or control which messaging, or information enters the marketplace of ideas. Therefore, it doesn’t just protect media outlets or press entities. It also protects the public’s right to receive information, particularly about government affairs and other matters of public concern.

The Supreme Court has also determined that speech protected by the First Amendment includes the written word and other forms of expressive conduct. For example, messaging on a t-shirt and distributing leaflets are considered speech or expression protected by the First Amendment.

Essentially, the First Amendment protects speech, whether expressed through a newspaper or a symbolic gesture. However, different modes of expression may implicate different standards of review. As the Turner Broadcasting v. FCC Court explained, quoting an earlier decision, “some special characteristic of the particular medium being regulated” may justify different treatment.

Unprotected Speech

The Court has also established some categories of unprotected speech. This means the First Amendment doesn’t generally restrict the government from regulating and punishing these types of speech. These unprotected categories include: 

• Defamation

• True threats

• Obscenity

• Child Pornography

• Fraud

However, not all restrictions on unprotected speech are constitutional. And not all restrictions on protected speech are unconstitutional.

Applicability of the First Amendment

The First Amendment only limits government action that interferes with the rights of private parties. It doesn’t apply to government restrictions on government speech or media, and it doesn’t generally limit restrictions imposed by private entities.

For example, the First Amendment generally prevents the government from prohibiting protests on public property. Conversely, a private property owner may ban protestors on their property without facing First Amendment issues.

Prior Restraint

Claims that a government action or restriction violates the First Amendment can based on several legal theories. One such theory is the doctrine of prior restraint.

Prior restraint generally refers to government restrictions on expression before it occurs. It most commonly pertains to published materials and frequently involves a free press discussion.

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 future publication of certain information

• An injunction restricting someone from speaking about a particular topic

• A regulatory scheme requiring government approval of content before publication

Prior restraints aren’t automatically considered unconstitutional. However, the Court has held they are subject to a “heavy presumption” of invalidity.

Near v. Minnesota

The Supreme Court established the doctrine of prior restraint in Near v. Minnesota (1931). The Near Court dealt with a restriction on defamation and other content in publications. The law allowed the state and government officials to enjoin or prevent violators from future publication.

The Court explained that the very meaning of a free press is the absence of prior restraints on publications and 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 in America.

Associated Press v. NLRB

The question of whether the right to a free press affords media outlets stronger First Amendment protection than non-press entities has generated robust discussion.

In Associated Press v. NLRB, (1937), the Court held that application of the National Labor Relations Act to a news media organization didn’t pose First Amendment issues.

The Court reasoned that newsgathering organizations don’t enjoy some type of special immunity from general laws like the NLRA. And they don’t have some sort of pass to infringe on the rights of others.

The Act sought to regulate employee relations and wage standards. It had nothing to do with the impartial dissemination of information. The Court, therefore, saw no constitutional problem with enforcing it against news agencies.

In Cohen v. Cowles Media Co. (1991), the Court again affirmed that media outlets must comply with generally applicable laws, even if those laws incidentally impact the media’s free speech rights.

New York Times v. Sullivan

In New York Times Co. v. Sullivan (1964),  the Court expanded media protection under the First Amendment. In this case, the Court reviewed a civil rights fundraising ad published with some inaccuracies.

The ad criticized an Alabama police department. The department's 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 the publication of 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 protection. 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.

The New York Times Court also established a strict actual malice standard required for libel actions against media outlets.

New York Times v. Sullivan

Commonly referred to as the Pentagon Papers case, New York Times Co. v. United States (1971) dealt with another prior restraint.

 After 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 their publication.

The administration claimed that publishing the leaked papers violated the Espionage Act, citing national security concerns as the reason for the prior restraint. The Court determined that the administration fell short of establishing that the national security concerns associated with publishing the leaked material outweighed the papers’ First Amendment rights.

This case is widely regarded as a free press win against government censorship.

Branzburg v. Hayes

In Branzburg v. Hayes (1972), the Court determined that the First Amendment doesn’t entitle press entities to different protection or treatment from others.

The Branzburg Court addressed whether reporters and other members of the media 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 and 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.

Houchins v. KQED

In Houchins v. KQED (1978), the Court addressed whether the First Amendment gives the institutional press wider latitude than private individuals or entities. In other words, is the press entitled to more freedom from government restriction than non-press entities?

According to Justice Stewart’s concurrence, 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 government watchdog.

 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.

First National Bank of Boston v. Bellotti

That same year, however, Chief Justice Burger took a different position in his First National Bank of Boston v. Bellotti concurrence. He explained the Court hadn’t settled the question as to whether the free press clause means that the “institutional press” is entitled to more freedom from government regulation than others.

Landmark Communications v. Virginia

In Landmark Communications v. Virginia (1978), the Court struck down a Virginia law criminalizing the disclosure of information about a state commission’s confidential inquiries and investigations into judges. A newspaper had published information from a commission hearing related to a confidential investigation into a state judge.

The state criminally sanctioned the paper, and 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. Although the state was interested in preserving the confidentiality of the hearings, the Court held that interest didn’t justify this degree of infringement upon First Amendment protections.

Richmond Newspaper v. Virginia

In Richmond Newspaper v. Virginia (1980) and several other cases, the Court has afforded the media some deference to which others aren’t entitled. This is because the Court recognizes the media's role in disseminating news and information.

In his Richmond concurrence, Justice Stevens implied the existence of some press-gathering right that can’t “be wholly inhibited by nondiscriminatory constraints.”

CBS, Inc. v. FCC

The Court addressed broadcast media regulation in CBS, Inc. v. Federal Communications Commission (1981). The Court’s decision distinguished 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. The Court explained that the public’s First Amendment rights, together with the candidates’ First Amendment rights, trumped the First Amendment rights of the broadcasters.

Globe Newspaper Co. v. Superior Court

In Globe Newspaper Co. v. Superior Court (1982), the Court developed a standard for evaluating whether government or private interests outweigh the public’s right of access. The Globe Court reviewed a law prohibiting the press and public access from attending sex crime court proceedings when minor victims are testifying.

In the Court’s opinion, Supreme Court Justice Brennan explained that public and press access to criminal trials is important because of the valuable function public scrutiny of a criminal trial serves. Specifically, it

• Strengthens and protects the integrity of the fact-finding process

• Cultivates an appearance of fairness

• Facilitates public participation in the judicial process

The Globe Court explained that a restriction closing off all or part of a criminal trial must demonstrate that doing so is necessitated by a compelling state interest. Likewise, that restriction must be narrowly tailored to serve that interest.

Social Media

The emergence of social media as “the modern public square” also raises new issues because social media sites are typically owned and operated by private entities.

This means they have their own First Amendment rights as corporations. It also means that First Amendment constraints don’t apply to these private owners’ regulation of content on their platforms.

However, the role the government can and should play in regulating content on these sites is a primary focus of developing caselaw. Concerns are rising about the control of these companies, like Facebook and Twitter (X), to limit and restrict the content on their sites. 

Several attempts have been made to compel them to enforce more or less content restrictions. For example, Texas, Florida, Ohio, and Georgia have tried to pass laws restricting their ability to regulate content on their platforms. The states have claimed their citizens’ free expression rights are at stake.

Accordingly, the states have tried to invoke the First Amendment by classifying the sites as public forums or common carriers. The social media sites have claimed their regulations aren’t subject to First Amendment constraints. They’ve also asserted that their algorithms are forms of expression protected by the First Amendment.

Several such cases await review by the Supreme Court, including a Texas case from the Fifth Circuit Court of Appeals. Justice Alito’s dissent to recent action in the matter summarizes his perspective of the Court’s challenges in such cases:

“It is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

As technological advances change the way the media operates and the public consumes information, future Court decisions will undoubtedly invaluable insight.