The Special (or not) Status of the Press

• Author: Ruthann Robson
• Pages: 157-253

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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!!

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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

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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