{"id":30881,"date":"2021-07-02T12:43:38","date_gmt":"2021-07-02T17:43:38","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/first-amendment-freedom-of-the-press.html"},"modified":"2024-09-30T14:53:49","modified_gmt":"2024-09-30T19:53:49","slug":"first-amendment-freedom-of-the-press","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/first-amendment-freedom-of-the-press.html","title":{"rendered":"Freedom of the Press"},"content":{"rendered":"\n
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Freedom of the Press<\/h1>\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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The First Amendment right to a free press was established as a check on government power and is deeply rooted in our commitment to democracy. In this article, we examine the Supreme Court\u2019s interpretation of a free press and the media\u2019s function as a government watchdog.<\/p>\n\n <\/div>\n\n

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

The First Amendment<\/a> protects these democratic ideals and reads in relevant part, \u201cCongress shall make no law\u2026abridging the freedom of speech, or of the press\u2026\u201d<\/p>\r\n

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

State Action and the First Amendment<\/h2>\r\n

In 1925, the Court decided Gitlow v. New York<\/i><\/a>. This landmark case was the first to address a state restriction on First Amendment rights.<\/p>\r\n

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.<\/p>\r\n

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.<\/p>\r\n

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

Although the Gitlow<\/i> 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.<\/p>\r\n

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.<\/p>\r\n

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<\/a>.<\/p>\r\n

Private Regulation of Speech<\/h2>\r\n

The First Amendment free speech and free press clauses mainly restrict government regulation of private speech and the press. They don\u2019t restrict government regulation of government speech<\/a>.<\/p>\r\n

Likewise, these First Amendment constraints don\u2019t 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.<\/p>\r\n

Does the First Amendment Apply to Social Media?<\/h3>\r\n

The emergence of social media as \u201cthe modern public square\u201d<\/a> also raises new issues. Social media sites are typically owned and operated by private entities. This means they have their own First Amendment rights.<\/p>\r\n

Commercial speech<\/a> by corporations is afforded its own protection by the First Amendment. Therefore, private owners of social media<\/a> 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.<\/p>\r\n

How Do the Courts Determine if a Law Violates the First Amendment\u2019s Freedom of the Press?<\/h2>\r\n

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

One such theory is the doctrine of prior restraint<\/a>. Prior restraint generally refers to government restrictions on speech or expressions before they\u2019re expressed or published. Prior restraint most commonly pertains to published materials and often involves a free press discussion.<\/p>\r\n

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.<\/p>\r\n

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