Freedom of the Press

Author:Thomas I. Emerson

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The constitutional basis for freedom of the press in the United States is the FIRST AMENDMENT, which provides: "Congress shall make no law ? 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." In a constitutional interpretation the separate rights enumerated in the First Amendment are merged into a composite right to freedom of expression. Within this general system freedom of the press focuses on the right to publish. Originally concerned with the product of printing presses?newspapers, periodicals, books, pamphlets, and broadsides?the term "press" now includes the electronic media. In general the constitutional issues involving freedom of the press are similar to those pertaining to other aspects of freedom of expression. However, certain areas are of special interest to the press, particularly to the mass media.

Freedom of the press has its roots in English history. When printing presses were introduced into England at the end of the fifteenth century they were quickly brought under total official control. Through a series of royal proclamations, Parliamentary enactments, and Star Chamber decrees a rigid system of censorship was established. No material could be printed unless it was first approved by a state or ecclesiastical official. Further, no book could be imported or sold without a license; all printing presses were required to be registered; the number of master printers was limited; and sweeping powers to search for contraband printed matter were exercised. (See PRIOR RESTRAINT AND CENSORSHIP.)

In 1695, when the then current licensing law expired, it was not renewed and the system of advance censorship was abandoned. The laws against SEDITIOUS LIBEL remained in effect, however. Under the libel law any criticism of the government or its officials, or circulation of information that reflected adversely upon the government, regardless of truth or falsity, was punishable by severe criminal penalties. Sir WILLIAM BLACKSTONE, summarizing the English law as it existed when he published his Commentaries in 1769, put it in these terms: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon public actions, and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity."

Developments in the American colonies followed those in England. Censorship laws existed in some of the colonies well into the eighteenth century. Likewise, prosecutions for seditious libel were not uncommon. in both England and America, however, there was strong opposition to the seditious libel laws. Thus in the famous ZENGER ' SCASE, where the publisher of a newspaper was prosecuted for printing satirical ballads reflecting upon the governor of New York and his council, the defense argued vigorously (but unsuccessfully) that truth should be a defense, and urged the jury (successfully) to give a general verdict of not guilty.

The law was in this state of flux when the First Amendment, with its guarantee of freedom of the press, was added to the Constitution in 1791. The specific intention of the Framers was never made explicit. It is generally agreed that the First Amendment was designed to make unconstitutional any system of advance censorship of the press, or "prior restraint," but its impact upon the law of seditious libel has been the subject of controversy. The latter issue was brought into sharp focus when the ALIEN AND SEDITION ACTS, which did include a modified seditious libel law, were enacted by Congress in 1798. Prosecutions under the Sedition Act were directed largely at editors of the press. The constitutionality was upheld by a number of trial judges, including some members of the Supreme Court sitting on circuit, but the issues never reached the Supreme Court. The lapse of the Alien and Sedition Acts after two years ended public attention to the problem for the time being.

For well over a century, although freedom of the press was at times not realized in practice, the constitutional issues did not come before the Supreme Court in any major decision. This situation changed abruptly after WORLD WAR I as the Court confronted a series of First Amendment problems. Two of these early cases were of paramount importance for freedom of the press. In NEAR V. MINNESOTA (1931) the Court considered the validity of the so-called Minnesota Gag Law. This statute provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was "guilty of a nuisance," and could be enjoined from further committing or maintaining such a nuisance. The Court held that the statutory scheme constituted a "prior restraint" and hence was invalid under the First Amendment. The Court thus established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. In a second decision, GROS-JEAN V. AMERICAN PRESS CO. (1936), the Court struck down

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a Louisiana statute, passed to advance the political interest of Senator Huey Long, that imposed a two percent tax on the gross receipts of newspapers and periodicals with circulations in excess of 20,000 a week. The Grosjean decision assured the press that it could not be subjected to any burden, in the guise of ECONOMIC REGULATION, that was not imposed generally upon other enterprises.

In the years since Near and Grosjean an elaborate body of legal doctrine, interpreting and applying the First Amendment right to freedom of the press in a variety of situations, has emerged. Before we turn to a survey of this constitutional structure, two preliminary matters need to be considered.

First, the functions that freedom of the press performs in a democratic society are, in general, the same as those served by the system of freedom of expression as a whole. Freedom of the press enhances the opportunity to achieve individual fulfillment, advances knowledge and the search for understanding, is vital to the process of self-government, and facilitates social change by the peaceful interchange of ideas. More particularly the press has been conceived as playing a special role in informing the public and in monitoring the performance of government. Often referred to as the "fourth estate," or the fourth branch of government, an independent press is one of the principal institutions in our society that possesses the resources and the capacity to confront the government and other centers of established authority. This concept of a free press was forcefully set forth by Justice HUGO L. BLACK in his opinion in NEW YORK TIMES CO. V. UNITED STATES (1971) (the Pentagon Papers case): "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government."

A second preliminary issue is whether the fact that the First Amendment specifically refers to freedom "of the press," in addition to "freedom of speech," means that the press is entitled to a special status, or special protection, different from that accorded other speakers. It has been suggested that the First Amendment should be so construed. Thus Justice POTTER STEWART has argued that the Framers of the Constitution intended to recognize "the organized press," that is, "the daily newspapers and other established news media," as "a fourth institution outside the Government," serving as "an additional check on the three official branches." As such an institution, he suggested, the press was entitled to enjoy not only "freedom of speech," available to all, but an additional right to "freedom of the press." Some commentators have echoed Justice Stewart's argument.

There are obvious drawbacks to according a special status to the "organized press." It is difficult to draw a line between "the press" and others seeking to communicate through the written or spoken word, such as scholars, pamphleteers, or...

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