Freedom Issues Freedom of the Press First Amendment Freedom of the Press—The Facts 1. The First Amendment states, "Congress shall pass no law...abridging the freedom of speech, or of the press." Prior Restraint 2. The Court first declared "prior restraint" on the press to be unconstitutional in Near v. Minnesota (1931), striking down a law giving public officials the right to enjoin—to prohibit by court order—a newspaper from publishing any "malicious, scandalous and defamatory" material. The Court concluded that the statute was a form of censorship which is incompatible with the history and purpose of a free press. Note that the Court was not sanctioning the publication of falsehoods, libel or other unprotected material; the Court was saying simply that any objection to what the press does or may do must be made after, not before, publication. But does that mean no prior restraint is ever constitutional? 3. Possibly a prior restraint would be upheld if the federal government could show that publication of the material would probably, if not certainly, imperil national security. However, this hypothetical has never been tested judicially, though the national security justification was advanced by the Nixon Administration in New York Times v. United States (1971), or the "Pentagon Papers" case. There, the Court decided that the U.S. government had not met the burden of proof necessary for prior restraint of documents detailing the United States' involvement in Vietnam. 4. In Miami Herald Publishing Co. v. Tornillo (1974) the Court struck down a Florida statute requiring newspapers to publish replies to their criticisms about political candidates, declaring that government can no more compel newspapers to publish political information than it can prohibit them from doing so. Libel 5. Libel—defamation in print—is not protected speech, However, because the purpose of the First Amendment is to encourage more, rather than less speech, and because a good deal of speech focuses on public officials and public figures, the Supreme Court has established a stringent test for holding the press liable for defaming public figures or public officials. 6. In New York Times v. Sullivan (1964), the Court declared that public officials suing a newspaper for libel must prove that a damaging statement was made with "actual malice"—that is, published with knowledge that the statement was false or in reckless disregard of its truth or falsity. 7. In Hustler Magazine v. Falwell, the Court applied the New York Times malice standard to offensive parody and satire of a public figure who claimed that the parody amounted to an intentional infliction of emotional distress. The Court ruled against Falwell because the parody did not purport to be a statement of fact. Trials and the Press 8. In Nebraska Press Ass. v. Stuart (1976), the Court ruled that judges in criminal trials cannot impose "gag orders" on reporters covering the trial. The Court held that the judge's order in the case was a form of prior restraint that, in that case, could not be justified by the judge's legitimate concern about the defendant's right to a fair trial. Protecting the defendant's right might justify a "gag " order in some circumstances, but this was not one of them. 9. In Houchins v. KQED (1978), the Court said that reporters do not have a special right to inspect government documents or attend government meetings. In reaction to the decision, Congress passed the U.S. Freedom of Information Act, which allowed the press to look at documents that didn't pertain to personnel matters and matters of national security, or whose exposure would not hamper law enforcement efforts. 10. In Richmond Newspapers v. Virginia (1980), the Court asserted that the public and the press have a qualified right to observe criminal trials. This right extends to some, but not all, pretrial proceedings in criminal cases. Discussion Questions Should radio and television be subject to greater First Amendment restriction than print media, since there is limited band space, and since such media are more easily accessed by minors? The recently struck-down Communications Decency Act would have placed restrictions on the types of material that can be placed on the Internet, and would have imposed fines and possibly jail terms on those that provided such materials. Does the rise of new electronic media like Internet, with its ease of access and wide range of available materials, require a new approach to First Amendment issues? Does media coverage of high-profile criminal trials alter their outcome? Should there be cameras in the courtroom? Or does such coverage serve a civic purpose by giving the public greater insight into the workings of the justice system? Speech Ideas/Talking Points Home | Freedom Issues Home Tips on Volunteering Home