AuthorPapandrea, Mary-Rose


President Trump's daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press "the ... enemy of the [American] people," (1) encouraged a climate of hatred toward journalists at his rallies, (2) refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, (3) and accused the media of writing "fake news." (4) The public's trust in the institutional press has simultaneously diminished. (5) Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they seem, and it is because the courts have continued to embrace the largely pressprotective interpretation of the First Amendment that arose in another time of crisis in the 1960s and 1970s. In New York Times Co. v. Sullivan (6) and New York Times Co. v. United States (7) (Pentagon Papers), the Supreme Court provided meaningful protection for the press in a time of great crisis and doctrinal uncertainty. Occurring during the civil rights movement and the Vietnam War, respectively, these cases represent the high point of constitutional protection for the press. These landmark decisions continue to provide meaningful protection for the press today. In both of these cases, the press faced fundamental threats to its role in checking government power and informing our democracy, and in both of these high-stakes cases, the press emerged victorious. (8)

Over time, however, these decisions have provided less protection than they may have initially appeared to provide. In the case of Sullivan, the scope of this protection has been narrowed, (9) while the prosecution of Julian Assange threatens to unravel the state of "benign indeterminancy" (10) that resulted from the Pentagon Papers opinion. (11) Although the news from the courts these days is still largely good for the press, we should be cautious about expecting the courts to be the press's savior. Specifically, the courts have not aggressively protected the rights of journalists to gather information; (12) in addition, court decisions favorable to the press appear to do very little to stem the public's growing mistrust of the media. (13) It is also far from certain that today's Supreme Court would be as sympathetic to the role of the press as the Court was in the 1960s and early 1970s.

Part I will discuss defamation law with a focus on the Court's decision in New York Times Co. v. Sullivan. This decision ""institutionalized" the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication. (14) The decision has since provided an essential foundation for press freedom for over fifty years. (15) At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, (16) speakers potentially face years of distracting and expensive litigation, even if they ultimately prevail.

Part II turns to protections for the publication of national security secrets. In United States v. New York Times Co. (Pentagon Papers), the Court held that the executive branch could not prevent the press from publishing a damning study of the United States's involvement in the Vietnam War. (17) But this decision does not provide immunity for defamation or the publication or collection of national security secrets and leaves journalists--as well as their sources--exposed to civil and criminal liability.

Part III examines the Court's failure to recognize constitutional protection for newsgathering activities. Although the Court has held that the First Amendment provides a broad right of access to criminal proceedings, (18) this right belongs to the public and not the press. Furthermore, this decision stands as something of an anomaly in the Court's right of access jurisprudence. One reason--although not the only one--for the Court's reluctance to recognize a more extensive right of access is its unwillingness to give the right to the entire public as well as its inability to define the "press" in a meaningful way. With the enormous changes in our media environment in the last two decades, (19) it seems highly unlikely that the Court will use the Press Clause to provide expansive rights of access.

Despite all of President Trump's attacks and the public's growing distrust of the press, the fourth branch continues to play an important role in checking government power and informing our democracy. It is less clear, however, whether the press will be able to continue to rely on the courts to provide these constitutional protections for this important work.


    In May 2016, the New York Times published a front-page article revealing that then-presidential candidate Donald Trump had sexually assaulted several women." (20) Trump denied these allegations, and his lawyer sent the Times a letter asking the newspaper to remove the article from its website and apologize, and threatening to file a defamation lawsuit. (21) New York Times's Associate General Counsel David McCraw wrote a feisty letter in response that not only defended the accuracy of the story but also made clear that the newspaper had a public duty to publish it, saying, "It would have been a disservice not just to our readers but to democracy itself to silence their voices." (22) He concluded that if Donald Trump disagrees and "believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to ... set him straight." (23) David McCraw was not only confident that the story was factually accurate; he also knew that if Trump tried to sue for defamation, his newspaper had the First Amendment in its corner. (24)

    In New York Times Co. v. Sullivan, the Court held that public officials who bring defamation claims must demonstrate the defendant published the challenged statements with "actual malice," or "with knowledge that it was false or with reckless disregard of whether it was false or not." (25) The plaintiff in that case was Lester Bruce (L.B.) Sullivan, one of the three city commissioners for the city of Montgomery, Alabama who sued the New York Times for defamation based on minor errors in a paid advertisement in the paper by a group seeking to raise money to defend Martin Luther King, Jr. (26) The full-page advertisement, headlined "Heed Their Rising Voices," detailed the treatment of King and of civil rights protestors throughout the South, including students at the Alabama State College in Montgomery. (27) The advertisement had several errors, most of which were inconsequential. (28) For example, it reported that the police had "ringjed]" the campus when, in fact, they had surrounded the school on three sides; that King had been arrested seven times when, in fact, it was four; and that state officials had "padlocked" the college dining hall when the students refused to reregister in protest, when they merely banned unregistered students from eating there. (29) Had the Times fact checked the advertisement against its own reporting, it likely would have caught these errors. (30) Instead, its Advertising Acceptability Department simply relied on the good reputation and uneventful prior dealings with the advertisement's sponsors. (31)

    Although Sullivan did not claim he suffered any actual damages from the errors in the advertisement, a Montgomery jury awarded him $500,000 in presumed damages. (32) And Sullivan's case was just one of many defamation cases that had been filed or threatened against the Times (and other publishers). (33) It is clear that southern officials believed defamation actions were the way to keep the press out of the South. Indeed, by 1964, the New York Times was facing over six million dollars in potential libel damages, and one of its leading reporters, Harrison E. Salisbury, was indicted on forty-two counts of criminal libel as a result of his reporting in Birmingham, Alabama. (34) These civil and criminal libel claims threatened the future existence of the publication; at the very least, they impacted the paper's coverage of the South. (35)

    Until Sullivan, the Court had presumed--albeit in dicta only--that the common law of defamation posed no constitutional problems. In several prior decisions, the Court had listed libelous statements as a category of speech that fell outside the scope of First Amendment protection. (36) The general assumption was that libel law struck a balance between freedom of speech and protecting reputational interests. (37) Furthermore, the Court could have--and almost did--resolve the case on the much narrower ground that Sullivan had failed to prove that the advertisement was "of and concerning" him. (38) The advertisement at issue did not mention Sullivan at all; indeed, the evidence failed to demonstrate he played any role in the police and state actions the advertisement criticized. (39)

    The Times argued to the Supreme Court that the First Amendment barred all libel lawsuits brought by public officials based on statements about their official conduct. (40) Although Justices Black, Douglas, and Goldberg embraced this view, this approach did not command a majority of the Court. (41) Despite equating defamation actions by public officials with prosecutions under the Sedition Act, the majority excluded calculated falsehoods. (42) Specifically, the Court held that defamatory statements are actionable if the plaintiff...

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