The Special (or not) Status of the Press

Author:Ruthann Robson
Pages:157-253
 
FREE EXCERPT
Robson The First Amendment
157
Chapter& Four:&THE& SPECIAL& (OR& NOT)&
STATUS&OF&THE&PRESS&&&
This chapter considers interpretations of the “free press” clause of the
First Amendment: “Congress shall make no law . . . abridging the
freedom of speech, or of the press; . . . .” An essential query is whether
infringements on “the press” are analyzed in a different manner than
infringements on “freedom of speech.” Or, as some argue, has “press”
been subsumed into “speech” for purposes of First Amendment doctrine?
Consider whether or not the Court’s rhetoric, reasoning, and conclusions
are consistent with the textual inclusion of “press” in the First
Amendment.
Chapter Outline
I.!Prior&Restraint&!
Near!v.!Minnesota!!
New!York!Times!Co.!v.!United!States!!
Notes!!
II.!The&Press&as&Guardian&of&the&Public’s&Right&to&Know?&!
&A.&The&Press&v.&Criminal&Defendants&&
Sheppard!v.!Maxwell!!
Nebraska!Press!Assn.!v.!Stuart!!
Notes!!
&B.&The&Press&as&a&Party&in&Civil&Litigation&&
Seattle!Times!Co.!v.!Rhinehart!!
&C.&Access&by&the&Press&&
Note:!“Public!Proceedings”!!
Houchins!v.!KQED,!Inc.!!
Notes!!
&D.(Un)lawful&Information&&
Note:!Bartnicki!v.!Vopper!!
&E.Reporters’&“privilege”&&
Branzburg!v.!Hayes!!
Cohen!v.!Cowles!Media!Co.!!
Notes!!
III.!Direct&Regulations&of&the&Press&!
The!Florida!Star!v.!B.!J.!F!!
Miami!Herald!Publishing!Co.!v.!Tornillo!!
Notes!!
Note:!Taxation!of!the!Press!!
IV.!Freedom&of&the&Press&and&Tort&Actions&!
&A.&Defamation&&
New!York!Times!Co.!v.!Sullivan!!
Gertz!v.!Robert!Welch,!Inc.!!
Notes!!
&B.&Other&Torts&&
Time,!Inc.!v.!Hill!!
Hustler!Magazine!v.!Falwell!!
Notes!!
Robson The First Amendment
158
I.&Prior&Restraint&&&
The notion of “censorship” is most akin to the doctrine of prior restraint,
which as the term implies, is when the government acts to prevent
speech before it can occur. In the context of the press, this is a pre-
publication injunction or criminalization rather than post-publication
damages.
The preeminent case involving prior restraint is New York Times v. United
States (1971), often known as The Pentagon Papers Case. The earlier
case of Near v. Minnesota (1931) is a landmark case setting out the
principles.
Near$v.$Minnesota$$
283 U.S. 697 (1931)
CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT, JOINED BY HOLMES, BRANDEIS,
STONE, AND ROBERTS, J.J. JUSTICE BUTLER ISSUED A DISSENTING OPINION JOINED BY VAN
DEVANTER, MCREYNOLDS, AND SUTHERLAND, J.J.
CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT.
Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for
the abatement, as a public nuisance, of a 'malicious, scandalous and
defamatory newspaper, magazine or other periodical.' Section 1 of the act is as
follows:
'Section 1 . Any pers on who, a s an individ ual, or as a member or employee of a
firm, or association or organization, or as an officer, director, member or
employee of a corporation, shall be engaged in the business of regularly or
customarily producing, publishing or circulating, having in possession, selling
or giving away.
'(a) an obscene, lewd and lasciv ious newspaper, magazine, or other periodical, or
'(b) a malicious, s candalous and defamatory newspa per, magazine or other
periodical,
-is guilty of a nuis ance, and all persons guilty of s uch nuisance may be enjoined,
as hereinafter provided.
Section 2 provides that, whenever any such nuisance is committed or exists,
the county attorney *** the Attorney General, or, upon like failure or refusal of
the latter, any citizen of the county, may maintain an action in the district court
of the county in the name of the state to enjoin perpetually the persons
committing or maintaining any such nuisance from further committing or
maintaining it. ***
[In this case] the county attorney of Hennepin county brought this action to
enjoin the publication of what was described as a 'malicious, scandalous and
defamatory newspaper, magazine or other periodical,' known as “The Saturday
Press” published by the defendants in the city of Minneapolis. *** Without
Robson The First Amendment
159
attempting to summarize the contents of the voluminous exhibits attached to
the complaint, we deem it sufficient to say that the articles charged, in
substance, that a Jewish gangster was in control of gambling, bootlegging, and
racketeering in Minneapolis, and that law enforcing officers and agencies were
not energetically performing their duties. Most of the charges were directed
against the chief of police; he was charged with gross neglect of duty, illicit
relations with gangsters, and with participation in graft. The county attorney
was charged with knowing the existing conditions and with failure to take
adequate measures to remedy them. The mayor was accused of inefficiency and
dereliction. One member of the grand jury was stated to be in sympathy with
the gangsters. A special grand jury and a special prosecutor were demanded to
deal with the situation in general, and, in particular, to investigate an attempt
to assassinate one Guilford, one of the original defendants, who, it appears from
the articles, was shot by gangsters after the first issue of the periodical had
been published. There is no question but that the articles made serious
accusations against the public officers named and others in connection with the
prevalence of crimes and the failure to expose and punish them.
[A state district court found against the defendant, Jay Near, the publisher of
“The Saturday Press”] and found that the defendants through these
publications did engage in the business of regularly and customarily producing,
publishing and circulating a malicious, scandalous and defamatory newspaper,
and that the said publication” “under said name of The Saturday Press, or any
other name, constitutes a public nuisance under the laws of the State.
Judgment was thereupon entered adjudging that the newspaper, magazine and
periodical known as The Saturday Press, as a public nuisance, be and is
hereby abated.The judgment perpetually enjoined the defendants from
producing, editing, publishing, circulating, having in their possession, selling or
giving away any publication whatsoever which is a malicious, scandalous or
defamatory newspaper, as defined by law,and also from further conducting
said nuisance under the name and title of said The Saturday Press or any other
name or title.” *** [Near appealed to the Minnesota Supreme Court which
affirmed].
This statute, for the suppression as a public nuisance of a newspaper or
periodical, is unusual, if not unique, and raises questions of grave importance
transcending the local interests involved in the particular action. It is no longer
open to doubt that the liberty of the press and of speech is within the liberty
safeguarded by the due process clause of the Fourteenth Amendment from
invasion by state action. *** Liberty, in each of its phases, has its history and
connotation, and, in the present instance, the inquiry is as to the historic
conception of the liberty of the press and whether the statute under review
violates the essential attributes of that liberty.
*** It is thus important to note precisely the purpose and effect of the statute as
the state court has construed it.
First. The statute is not aimed at the redress of individual or private wrongs.
Remedies for libel remain available and unaffected. ***
Second. The statute is directed not simply at the circulation of scandalous and
defamatory statements with regard to private citizens, but at the continued

To continue reading

FREE SIGN UP