Freedom of the Press

Introduction

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

• This right is seen as a way to protect other political and personal liberties.

• The heart of free press issues is prior restraint.

Prior Restraint

• Definition: Government reviews material to determine whether publication of the material should be allowed.

• First indication of this concept was in 1695, when Blackstone wrote that no previous restraint should be placed on the press.

• If there were to be any censorship it could occur only after publication and only if the activity violates criminal laws.

Near v. Minnesota (1931)

• Is a statute authorizing the prior restraint of a newspaper consistent with the liberty of the freedom of the press?

• No. 5-4 vote.

• The right to be free of prior restraint is not unlimited, but limitations are recognized only in exceptional cases. Such an exception might be when a nation is at war.

Prior Restraint

• When does Near indicate prior restraint may be allowed?

• Court never dealt with the publication of war plans, but what about classified documents?

• National Security: New York Times v. U.S. (1971).

New York Times v. U.S. (1971)

• Does the government interest in protecting national security justify prior restraint?

• No. 6-3 vote.

• Any system of prior restraint comes to the Court bearing a heavy presumption against constitutional validity. Here the government does not meet the heavy burden of showing justification for the imposition of such a restraint.

National Security and Prior Restraint

• What about images of 1991 Gulf War that showed real time war footage?

• What about clips of the U.S. troops landing in Somalia?

• Imbedded journalists in the Iraq war?

Hazelwood School District v. Kuhlmeier (1988)

• May educators exercise editorial control over the contents of a high school publication produced as a part of the school’s journalism curriculum?

• Yes. 5-3 vote.

• The activities in question are part of school curriculum, and educators are entitled to exercise greater control over such activities to make sure that students learn the lesson that is being taught.

Hazelwood Questions

• Is Hazelwood ONLY applicable to students?

• Or does it apply more generally?

Government Control of the Press: Prohibiting Content

• Cox Broadcasting (1975): States cannot restrict the publication of truthful and public information (still good law).

• Nebraska Press Association v. Stuart (1976): No gag order on pretrial proceedings even if meant to protect the defendant from prejudicial publicity.

• Simon & Schuster v. New York State Crime Victims Board (1991): Content-based prohibitions are antithetical to the First Amendment.

Government Control of the Press: Mandating Content

• Miami Herald v. Tornillo (1974): Court says the government cannot mandate responsible journalism (newspapers).

• The question is whether this applies to the electronic media as well.

• Red Lion (1969): Broadcasting may be treated differently from the print media. On the other hand:

• CBS v. DNC (1973): Broadcasters do not have to accept editorials in the form of ads.

Red Lion Broadcasting v. FCC (1969)

• Does fairness doctrine violate the First Amendment guarantee of freedom of the press?

• No. 7-0 vote.

• Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.

Media and Special Rights

• Reporters’ privilege goes back 150 years. Came to a head during the Nixon administration.

• Branzburg v. Hayes (1972): There is no reporters’ privilege.

• Zurcher v. Stanford Daily (1978): Press are not immune from valid warrants for searches.

Branzburg v. Hayes (1972)

• Does requiring reporters to appear and testify before grand juries violate their freedom of speech and press guaranteed by the First Amendment?

• No. 5-4 vote.

• We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source on the theory that it is better to write about crime than to do something about it.

Media and Access

• Houchins v. KQED (1978): The press is not entitled to greater access than the general public to government information.

• Richmond Newspapers v. Virginia (1980): The press has the right to attend a criminal trial.