Freedom of the PressIn the United States of America

“Were it left to me to decide whether we should have a government without newspapers, or newspapers without government, I should not hesitate a moment to prefer the latter.”

-Thomas Jefferson

“To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

-- James Madison

“The press is the enemy.”

-- Richard Nixon

The First Amendment to the U.S. Constitution:

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

The First Amendment to the U.S. Constitution is part of the Bill of Rights, a list of fundamental freedoms.

Prior Restraint

• When the government bans particular content before publication.

• When the government must approve all content before publication.

Near vs. Minnesota (1931)

• The Supreme Court’s first major decision on censorship.

•Establishes the presumption that prior restraint is heavily suspect, and justifiable only in very limited instances.

NY Times Co. v. United States (1971)

•Heavy burden for justifying prior restraint, even in national security matters.

•Must present a “grave and irreparable” danger

Daniel Ellsberg, a military analyst, leaked documents that became known as the “Pentagon Papers,” a top secret study of the Vietnam War.

Other Possible Exceptions to the

Principle of No Prior Restraint:

• Advocacy of force or criminal activity

• Publication that threatens the right to a fair trial

• Obscene materials

• Invasion of Privacy

• Libel – false and declamatory statements, causing injury

These are not violations of constitutional rights, but rather tort cases.

Publications protected from prior restraint may still be subject to subsequent punishment:

NY Times v. Sullivan (1964)

•Established a high standard for libel when dealing with public figures in the performance of their duties.

•Required “malicious intent”

NY Times v. Sullivan arose out of an advertisement placed by a group of civil rights activists entitled “Heed Their Rising Voices”

Protection of Confidential Sources

•

•

•Tension between the Government and the press over the use of subpoenas to force journalists to disclose confidential news sources.

•The First Amendment does not relieve reporters of the right to testify in federal criminal cases.

•31 States have laws shielding journalists to some degree from disclosure.

Freedom of Information Requests

•Open records laws.

•Based on the

presumption that all

government documents

are public, unless

specifically exempted.

“Where the press is free and every man able to read, all is safe.”

-- Thomas Jefferson