15 November 2007
Freedom of the Press
"Congress shall make no law ... abridging the freedom of speech, or of the press ...."
— First Amendment
Often the first thing that anti-democratic forces do when they take over a county is shut down newspapers and broadcast news sources. In 1787, Thomas Jefferson already realized that even the highly partisan press of his day was essential to the democratic process.
"Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government," Jefferson wrote, "I should not hesitate a moment to prefer the latter."
The case of John Peter Zenger in 1735, decades before American independence, set an important precedent for a free press. Zenger's newspaper published an article criticizing the royal governor of New York for removing a judge from office after the judge ruled in a case against the governor. The governor then sued Zenger for seditious libel. Zenger's attorney, though, persuaded the New York jury to acquit Zenger on the grounds that the article was true.
Zenger's case set a precedent in the Colonies that became the United States. Colonial publishers freely criticized the king and royal governors as juries failed to convict publishers for telling the truth.
In the 20th century, the U.S. Supreme Court issued rulings giving news purveyors even stronger defense against government intrusion. In 1931, in the case Near v. Minnesota, the court ruled against a Minnesota state law allowing suppression as a public nuisance of any "malicious, scandalous or defamatory" publications. Under that law, Minnesota's government had shut down a newspaper that had run exposes about corrupt local politicians and businessmen. Chief Justice Charles Evan Hughes asserted in the Supreme Court's opinion, however, that, except in wartime emergency, no government could limit a newspaper's constitutional right to publish.
In a 1964 case, New York Times v. Sullivan, the Supreme Court overturned a $500,000 damages award made by a local jury to the Montgomery, Alabama, police commissioner over a full-page advertisement the Times had published describing police beatings of civil rights workers. Even though the ad contained minor errors of fact, the justices said such huge damages awards would have a "chilling" effect discouraging a vigorous free press. Their ruling prohibited punishment against publication of stories about public officials performing official duties except when the publishers know information in the stories is false and print them anyway with the malicious intent of harming the officials.
A few years later, the New York Times figured in another major free press case, the Pentagon Papers case. When the Times began printing excerpts from embarrassing unpublished documents about conduct of the Vietnam War, President Nixon's administration secured from a federal court a temporary injunction against further publication on national security grounds. When the Washington Post started printing more excerpts, the government secured another injunction. When the Boston Globe quickly resumed printing more excerpts, the Supreme Court agreed to take the case on an expedited basis.
In the 1971 case New York Times v. United States, the justices issued a clear decision that the government should not attempt to censor newspapers about potentially embarrassing information through prior restraints on publishing, except for clearly sensitive information during emergencies such as war.
"These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press," Justice William O. Douglas wrote in his opinion. "The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information."
(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
