Freedom of the Press

• Author: Jeffrey Lehman, Shirelle Phelps

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The right, guaranteed by the FIRST AMENDMENT to the U.S. Constitution, to gather, publish, and distribute information and ideas without government

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restriction; this right encompasses freedom from PRIOR RESTRAINTS on publication and freedom from CENSORSHIP.

The First Amendment to the U.S. Constitution reads, in part, "Congress shall make no law? abridging the FREEDOM OF SPEECH, or of the press." The courts have long struggled to determine whether the Framers of the Constitution intended to differentiate press freedom from speech freedom. Most have concluded that freedom of the press derives from freedom of speech. Although some cases and some legal scholars, including Justice POTTER STEWART, of the U.S. Supreme Court, have advocated special press protections distinct from those accorded to speech, most justices believe that the Freedom of the Press Clause has no significance independent of the Freedom of Speech Clause.

The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice WARREN E. BURGER, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press, and that there is no need to distinguish between the two rights:

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.

The Court has generally rejected requests to extend to the press PRIVILEGES AND IMMUNITIES beyond those available to ordinary citizens. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), it held that a journalist's privilege to refuse to disclose information such as the names of informants is no broader than that enjoyed by any citizen. As long as an inquiry is conducted in GOOD FAITH, with relevant questions and no harassment, a journalist must cooperate.

Justice Stewart's dissent in Branzburg urged the Court to find that a qualified journalistic privilege exists unless the government is able to show three...