Freedom of the press in the United States

Freedom of the press in the United States is protected by the First Amendment to the United States Constitution. This clause is generally understood as prohibiting the government from interfering with the printing and distribution of information or opinions, although freedom of the press is subject to some restrictions, such as defamation law.

The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government.^[1][2] This right was described in Branzburg v. Hayes as "a fundamental personal right" that is not confined to newspapers and periodicals.^[3] In Lovell v. City of Griffin (1938),^[4] Chief Justice Charles Evans Hughes defined "press" as "every sort of publication which affords a vehicle of information and opinion."^[5] This right has been extended to media including newspapers, books, plays, movies, and video games.^[6]

At one time, it was an open question whether people who blog, Twitter or use other social media are journalists entitled to protection by media shield laws,^[7] they are protected equally by the Free Speech Clause and the Free Press Clause, because neither clause differentiates between media businesses and nonprofessional speakers.^[1][2][8][9] This is further evidenced by the United States Supreme Court who constantly refused to accord greater First Amendment protection to the institutional media than to other speakers.^[10][11][12] For example, in a case involving campaign finance laws the Court rejected the "suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by" non-institutional-press businesses.^[13]

As famously said by journalist A. J. Liebling, "Freedom of the press is guaranteed only to those who own one."^[14] The individuals, businesses, and organizations that own a means of publication are able to publish information and opinions without government interference, and cannot be compelled by the government to publish information and opinions that they disagree with. For example, the owner of a printing press cannot be required to print advertisements for a political opponent, even if the printer normally accepts commercial printing jobs.

In 1931, the U.S. Supreme Court decision in Near v. Minnesota used the 14th Amendment to apply the freedom of the press to the States. Other notable cases regarding free press are:

• New York Times Co. v. United States (1971): The Supreme Court upheld the publication of the Pentagon Papers.
• New York Times Co. v. Sullivan (1964): The Supreme Court held that when a publication involves a public figure, in order to support a suit for libel, the plaintiff bears the burden of proving that the publisher acted with "actual malice," meaning that the publisher knew of the falsity of the statement or acted with reckless disregard as to the truth of the statement.

It was for the first time^[15][16] ruled by a decision of The United States Court of Appeals for the Ninth Circuit^[17] that a blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless the blogger acted negligently.^[18] The Ninth Circuit court essentially said journalists and bloggers are one and the same when it comes to the First Amendment^[15] because the "protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story."^{[16][17]:11–12}

Ranking of United States press freedom

Freedom House, an independent watchdog organization, ranked the United States 30th out of 197 countries in terms of press freedom.^[19] The report lauded the constitutional protections afforded American journalists, but criticized authorities for placing undue limits on investigative reporting in the name of national security. Freedom House awards countries a score out of 100, with 0 representing most free and 100 representing least free. The score is broken down into three, separately weighted, categories: legal (out of 30), political (out of 40), and economic (out of 30) environments. The United States scored a 6, 10, and 5 respectively. This gave it a cumulative score of 21.^[20]

As of February 12, 2014, the United States is ranked 46th in the Reporters Without Borders Press Freedom Index.^[21] This is a measure of freedom available to the press, encompassing areas such as government censorship, and not indicative of the quality of journalism. There was a fall from 20th in 2010 to 42nd in 2012, which was attributed to arrests of journalists covering the Occupy movement.^[22]

For 2012, Finland and Norway tied for 1st worldwide. Canada ranked 10th, Germany tied 17th with Jamaica, and Japan tied 22nd with Suriname. The UK ranked 28th, Australia 30th, and France 38th.

Extraterritorial regions of the US ranked 57th.

Notable exceptions

• In 1798, a short time following the adoption of the Constitution, the governing Federalist Party attempted to stifle criticism by means of the Alien and Sedition Acts. (It was notable that the Sedition Act made criticism of Congress, and of the President, a crime, but not criticism of the Vice-President. Jefferson, a non-Federalist, was Vice-President at the time the Act was passed.) These restrictions on Freedom of the Press proved very unpopular in the end and worked against the Federalists, leading to the party's eventual demise. Thomas Jefferson was among those who opposed the Acts, and did so vehemently, and he was elected President in the election of 1800. Jefferson then pardoned most of those convicted under the Acts. He made it a principle not to ask what they had done, but only whether they had been charged under the Acts. In his first Inaugural Address in 1801 he reiterated his longstanding commitment to Freedom of Speech and of the Press: "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
• In mid-August 1861, four newspapers in New York City: New York Daily News, Journal of Commerce, Day Book, and Freeman’s Journal were all given a presentment by a Grand Jury of the United States Circuit Court for "frequently encouraging the rebels by expressions of sympathy and agreement". This began a series of federal prosecutions of newspapers throughout the Northern United States during the Civil War which printed expressions of sympathy for Southern causes or criticisms of the Lincoln Administration. Lists of "peace newspapers" that had been published in protest by the New York Daily News were used to conduct planned retributions. The Bangor Democrat, in Maine, was one of these newspapers, where assailants, believed to be part of a covert Federal raid, destroyed the Press and set the newspaper facility ablaze.^[23] These actions all followed various "executive orders" issued by President Lincoln, including his eighth order on August 7, 1861, which made it both illegal and punishable by death to hold "correspondence with" or give "intelligence to the enemy, either directly or indirectly". This was taken as explicit permission and direction for action for various State and Federal executive and legislative bodies.
• The Espionage Act of 1917 and the Sedition Act of 1918, which amended it, imposed restrictions on the Free Press during wartime. It carried fines of $10,000 and up to 20 years imprisonment for people publishing "... disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ..." In Schenck v. United States (1919), the Supreme Court upheld the laws, setting the "Clear and present danger" standard. Congress repealed both laws in 1921, and Brandenburg v. Ohio (1969) revised the "Clear and present danger" test to the "Imminent lawless action" test, which is less restrictive.
• 1988: Hazelwood v. Kuhlmeier: The Supreme Court upheld that the principal of a school has the right to review and block controversial articles of a school paper funded by the school and published in the school's name.
• In the United States in 2005, interpretation of the Bipartisan Campaign Reform Act may consider political statements as being the equivalent of campaign donations. Because access to Internet statements are weakly controlled, the campaign value of statements is not known in advance and a high ultimate value may trigger large fines for violations. This particularly threatens Internet statements by individuals, and vague definitions of membership in the press make the possible effects ambiguous.
• In United States v. Manning (2013), Bradley (later Chelsea) Manning was found guilty on six counts of espionage for the leak of classified information to Wikileaks. Thereby The New York Times was prevented from publishing materials leaked by Manning.

See also

• Obsidian Finance Group, LLC v. Cox, an 2014 federal appellate court ruling holding for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.

References

Further reading

• Epps, Garrett and David B. Oppenheimer. Freedom of the Press: The First Amendment: Its Constitutional History and the Contemporary Debate (2008)
• Martin, Robert W.T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 (2012).
• Nelson, Harold Lewis, ed. Freedom of the Press from Hamilton to the Warren Court (Bobbs-Merrill Company, 1967)
• Powe, Lucas A. The Fourth Estate and the Constitution: Freedom of the Press in America (Univ of California Press, 1992)
• Ross, Gary. Who Watches the Watchmen?: The Conflict Between National Security and Freedom of the Press (2015)