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Constitutional Provision

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”


Freedom of the press, provided through the First Amendment of the Constitution, involves freedom of communication and expression through various media outlets, including various electronic media and published materials. Generally, the press has no greater First Amendment freedom than the ordinary citizen.

(1) Right of Access: The First Amendment guarantees that both the public and the press have a right to attend a criminal trial. This right can be outweighed, however, by an overriding governmental interest (example – to protect children who are victims of sex offenses.)

(2) Grand Jury Testimony: Press members may be required to testify before grand juries; there is no privilege to refuse to disclose confidential sources. Many states have enacted laws to afford such protection however.

(3) Broadcasting: Radio and television broadcasting may be more closely regulated than the press due to limited number of frequencies available.

A Sampling of Landmark Cases:

Near v. Minnesota (1931): This case helped the Supreme Court define freedom of the press and the concept of prior restraint. When Minneapolis newspaper editor Jay Near attacked local officials by claiming in print that they were associated with gangsters, Minnesota officials obtained an injunction to keep Near from publishing his paper under state law. The law said that anyone who published a “malicious, scandalous and defamatory” newspaper article was a nuisance and could be stopped from publishing such information. The Supreme Court had to determine if the Minnesota law restricted freedom of the press. The Court ruled that the law kept certain information from being published – a concept called prior restraint — and violated the First Amendment. This case helped establish the principle that the government can’t censor or prohibit a publication in advance, with a few exceptions, even though the communication might be actionable in a future proceeding.

Nebraska Press Association v. Stuart (1976): While presiding over a widely publicized murder trial, a Nebraska state trial judge kept reporters from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that prior restraint (an order not

to print information before it’s actually printed) was necessary in order to give the accused a fair trial. The Supreme Court, however, found that the judge’s order violated the First and Fourteenth amendments. The court felt that implementing prior restraint wouldn’t affect the trial’s outcome. Chief Justice Warren Burger reasoned that the “whole community should not be restrained from discussing a subject intimately affecting life within,” thus protecting the press’ responsibility to provide information of public interest.

Branzburg v. Hayes (1971): Should reporters be forced to share confidential information? Reporter Paul Branzburg interviewed several drug users in a two-county area in Kentucky, and wrote an article that appeared in the Louisville Courier-Journal. He was called in twice to testify about his sources before state grand juries investing drug crimes — and refused. The question posed to the Supreme Court: Does forcing a reporter to testify before a grand jury violate his or her freedoms of speech and press? The Supreme Court found that this so-called reporter’s privilege doesn’t apply if a reporter’s confidential information was of a “compelling” and “paramount” state interest, couldn’t be obtained any other way, and contained specific information about specific crimes. Simply put, forcing a reporter to testify before a grand jury won’t violate that reporter’s first amendment rights. The fact that reporters receive information in confidence doesn’t give them the right to withhold that information in a government investigation. Private citizens are often required to share information learned in confidence if called upon to testify in court, and thus, so are reporters.

Cohen v. Cowles Media Co. (1982): Dan Cohen, a Republican campaign associate for 1982 Minnesota gubernatorial candidate Wheelock Whitney, gave court records about the Democratic candidate for lieutenant governor to various newspapers in St. Paul and Minneapolis. The newspapers had promised him confidentiality, but identified him anyway. He was fired, and Cohen sued the Cowles Media Company in state court for breach of contract. He won compensatory damages and the state appellate court upheld the award. However, thestate supreme court in Minnesota reversed the lower court’s decision, saying that Cohen’s claim relied on the state’s promissory estoppel law, a statute that prevents someone frombreaking a promise. The court ruled that the First Amendment’s freedom of the pressguarantee prevented promissory estoppel from applying to the newspapers. The Supreme Court tackled the question of whether the First Amendment bars a source from recoveringdamages if a newspaper doesn’t it fulfill its promise of confidentiality. It decided that the FirstAmendment doesn’t prevent a promissory estoppel suit against the press, ruling that Minnesota’s promissory estoppel law applied to individuals or institutions. In this case, the FirstAmendment didn’t protect the press from breaking a promise to its sources.

Chandler v. Florida (1981): Ever wonder why judges allow cameras in courtrooms? A Miami Beach jury convicted two men of conspiracy to commit burglary, grand larceny and possession of burglary tools after breaking into a popular local restaurant. Normally, a case like this wouldn’t attract much public attention and media scrutiny, but the men in this case just happened to be Miami Beach police officers. The officers objected to the media presence, claiming the attention would make a fair trial impossible. However, the trial court had already agreed to allow cameras in the courtroom on an experimental basis, and the officers were convicted; after debating whether the cameras denied the defendants a fair trial under the 6th and 14th Amendments, the U.S. Supreme Court upheld the trial court’s position. Since that

time, most federal and state courts allow cameras in the courtroom. This case helped clear the way for live courtroom TV shows, as well as the famous live coverage of the O.J Simpson and Rodney King trials. The question of cameras in the courtroom continues to a be a complicated one, as some people believe it an invasion of privacy of those involved in the case, and that excessive media coverage may distort judicial proceedings.

New York Times Co. v. Sullivan (1964): During the turbulent days of the early 1960s, a full- page ad appeared in the New York Times that claimed the arrest of Rev. Martin Luther King, Jr. for perjury in Montgomery, Ala., was part of a campaign to destroy King’s efforts to integrate public facilities and encourage blacks to vote. In response, Montgomery city commissioner L.B. Sullivan filed a libel action against the newspaper and four black ministers listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan didn’t have to prove the harm to his reputation; the ad contained factual errors that precluded a truth defense. The challenge before the Court: Did Alabama’s libel law infringe on the First Amendment’s freedom of speech and press protection? The Court held that the First Amendment protects the publication of all statements — even those later proven false — about the conduct of public officials unless they’re made with actual malice, or knowledge that they’re false or reckless. The Court dismissed Sullivan’s case and established that publicly elected officials must prove an actual intent to harm in cases of libel or defamation.

Curtis Publishing v. Butts (1966): Shortly after New York Times Co. v. Sullivan, two cases originating on Southern college campuses in the early 1960s came before the Supreme Court, raising questions about the application of the actual malice standard to public figures. In one case, the Saturday Evening Post, published by Curtis Publishing Company, ran an article accusing Wally Butts, then-athletic director for the University of Georgia, of conspiring to fix a 1962 football game between Georgia and its rival, the University of Alabama. The article claimed that Butts gave Georgia’s plays to Alabama coach Paul “Bear” Bryant. Butts sued for defamation, and a trial court ruled in his favor. Soon after the court’s ruling in Times vs. Sullivan, Curtis moved for a new trial because the actual malice standard from that case wasn’t applied. But Curtis wasn’t an elected public official – did the standard apply? In its 5-4 ruling, the Supreme Court agreed to extend the reach of the Sullivan verdict to include public figures like national politicians, business tycoons and celebrities. Chief Justice Earl Warren reasoned there was “no basis in law, logic, or First Amendment policy” to differentiate between public officials and public figures.

Gertz vs. Robert Welch, Inc. (1974): Robert Welch, Inc., publisher of American Opinion, a magazine that spread the views of the ultraconservative John Birch Society, warned that Communist sympathizers were trying to frame police officers — and sparked a case that defined libel for private individuals. When Chicago police officer Robert Nuccio was convicted of a young man’s murder, local attorney Elmer Gertz represented the victim’s family in a civil suit. An article in the magazine contained several factual misstatements about Gertz, who didn’t frame Nuccio in any way. Gertz sued for defamation; a trial court ruled that Gertz had to prove that the magazine acted with actual malice since the article discussed important public issues. Gertz argued that because he was a private person, not a public figure, he only needed to show negligence or fault. The Court ruled 5-4 that a private person doesn’t have to show actual

malice in order to prove libel — even if the defamatory comments concern public issues. The Supreme Court distinguished between public and private individuals for the purposes of defamation law: “Private persons are more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” The Court reasoned that public officials and public figures have greater access to the media, and thus can better counteract false statements than private individuals. In this case, the Court set up a different standard for private individuals, saying that states themselves could define the appropriate standard of liability for a journalist who makes defamatory, false statements about a private individual.

New York Times Co. vs. United States (1971): In 1971, as the nation heatedly debated its involvement in the Vietnam War, the New York Times obtained a copy of an internal Defense Department report that detailed government discussions about the war. These confidential documents would become famously known as the Pentagon Papers. At the U.S. government’s request, the district court issued a temporary injunction ordering the New York Times not to publish the documents, claiming that the publication of the documents would endanger national security. The Times appealed, arguing that prior restraint (preventing publication) violated the First Amendment. The Supreme Court ruled 6-3 in favor of the Times. In dissent, Chief Justice Warren Burger noted that the “imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex, modern government.” He challenged the wisdom of publishing the highly confidential intelligence, but respected the freedom offered by the First Amendment: “Only those who view the First Amendment as an absolute in all circumstances — a view I respect, but reject — can find such cases as these to be simple or easy.” This case is extremely important to journalists, as the court recognized the need to find a balance between the right to a free press and the need for the government to protect national security. The ruling in favor of the press places even more responsibility on the Fourth Estate, challenging journalists to use their freedoms wisely in their role as gatekeepers for disseminating information to the public.

Hazelwood School District v. Kuhlmeier (1988): Are high school students protected by freedom of speech? When Hazelwood East High School principal Robert E. Reynolds thumbed through the proofs of the Spectrum, the school paper, and found two articles to be inappropriate, he barred them from publication. Cathy Kuhlmeier and two other students on the newspaper staff brought the case to court, saying the principal’s actions violated their First Amendment rights. Read the Court’s opinion included in this week’s material for the outcome.

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