29 April 2005
First Amendment Underlines Press Freedom In United States
Free press protections have evolved over two centuries
(This backgrounder on the First Amendment, press freedom and independent media was written to mark World Press Freedom Day on May 3. In this article, contributing writer David Pitts outlines the constitutional basis for press freedom in the United States -- the First Amendment -- together with the major court rulings that have given depth and scope to this vital principle.)
Washington -- In the course of almost a decade, the U.S. Supreme Court, presided over by Chief Justice William Rehnquist, has cited the First Amendment to the U.S. Constitution to set aside 13 federal laws, eight state laws, and four local laws, according to Ronald Collins, a scholar with the First Amendment Center, a free press advocacy group.
The court's actions illustrate an important principle in the U.S. system -- that the Constitution, which guarantees freedom of the press, takes precedence over individual laws, whether federal, state or local. The First Amendment reads, in part, "Congress shall make no law...abridging freedom of speech, or of the press."
From the beginning, even before the Constitution went into effect in 1789, the architects of the American Revolution felt passionately that liberty cannot exist without a free press. "Our liberty depends on freedom of the press, and that cannot be limited without being lost," Thomas Jefferson, the author of the Declaration of Independence, remarked in 1786. When the First Amendment was added to the Constitution in 1791, the first of 10 amendments collectively known as the Bill of Rights, the Founding Fathers knew that its meaning would have to be interpreted by the courts in the light of changing circumstances as well as in relation to other rights protected under the Constitution. Such indeed has proved to be the case.
Over the years, the Supreme Court and other courts have grappled with the issue of precisely what constitutes a free press and free speech under the First Amendment. It does not, for example, "protect a man in falsely shouting fire in a theater and causing a panic," as Supreme Court Justice Oliver Wendell Holmes famously said in 1919. In the same ruling (Schenk v. United States), Holmes also used the phrase "clear and present danger," to refer to evils "that Congress has a right to prevent." He added: "It is a question of proximity and degree."
Issues of proximity and degree have been involved in most of the important court decisions affecting freedom of the press, a point underlined by experts who have dealt in practical terms with the issue. "Is the First Amendment as absolute as the words themselves suggest? The answer is one that the U.S. Supreme Court has been trying to answer for two hundred years," says Jane Kirtley, a professor at the University of Minnesota and a former executive director for the Reporters Committee for Freedom of the Press.
Among the court’s most important rulings that have enhanced press freedom are:
-- 1931. Near v. Minnesota. The Supreme Court extended the protection of the press from state laws as well as federal laws. Until this time, the press was only protected from the reach of the federal government. This landmark decision also outlawed most forms of prior restraint.
-- 1936. Gorsjean v. American Press Co. The Supreme Court ruled that governments cannot impose taxes on a newspaper’s circulation. Discriminatory taxation is a method still used by many governments around the world to unfairly target and burden the press.
-- 1964. New York Times v. Sullivan. The Supreme Court ruled that a public official cannot recover damages based on publication of a defamatory falsehood related to his official conduct unless he proves the statement was made with "actual malice." It was later extended to cover all public figures.
-- 1971. New York Times v. United States. The Supreme Court ruled that freedom of the press from "prior restraint," is nearly absolute. The newspaper was allowed to publish "The Pentagon Papers," relating to the Vietnam War, even though the government argued this would damage national security. The court ruled that the government had not proved that publication would inflict "direct, immediate, and irreparable harm to the national interest."
-- 1974. Miami Herald v. Tornillo. The Supreme Court ruled that a candidate running for office is not entitled to equal space to reply to a newspaper’s attacks on him. However, the court has not yet extended similar protection to the broadcast media. Broadcasters must provide a right of reply under certain circumstances.
-- 1988. Hustler Magazine v. Falwell. The Supreme Court ruled that the press has the right to parody public figures even when such parodies are "outrageous," and even when they cause emotional distress.
-- 2001. Bartnicki v. Vopper. The Supreme Court ruled that when issues of public concern are involved, the First Amendment protects the news media even when they broadcast cellular phone conversations illegally intercepted by someone else.
These Supreme Court decisions, as well as hundreds of others by lower courts, illustrate the significant role the judiciary has played in the U.S. system in ensuring freedom of the press, and underscore the necessity of judicial independence and impartiality, says Kirtley. "The Constitution and the Bill of Rights have never been self-executing documents. They depend upon an independent judiciary to interpret them and bring them to life," she adds. Embedding the principle immutably in the Constitution, however, helps ensure that the courts will act to maximize freedom of the press rather than minimize it. Such has been the case in the long history of American jurisprudence on this issue.
However important the constitutional and legal protections underpinning freedom of the press, though, they do not exist in a vacuum. The culture of a society and how it evolves also is key. Over the years, the United States, like many other democratic societies, has developed a dynamic civil society independent of government. A myriad of nongovernmental organizations (NGOs) have formed to protect and promote a free press. Partly as a result of their pressure, governments have become more responsive to the needs of journalists. For example, in the last century, the federal government and many state governments passed freedom of information and open meetings laws that provide the press with a statutory right to obtain information.
A key factor affecting the press, especially in recent decades, is the dizzying pace of technological change. For example, there has been much debate about the Internet and what does, and does not, constitute a protected press function on that medium, a point stressed by Madeleine Schachter, a media attorney for Time-Warner. Schachter, who has written a book titled, "The Law of Internet Speech," says "the courts will have to grapple with this issue of the Internet and new technology, and their decisions will turn to a large degree on the nature of the functions involved." Court decisions will have to be "adequately malleable to accommodate new technologies," she adds.
Another technological development affecting media is the growth of cable and satellite. There are now hundreds of networks and stations available in most U.S. television markets. Consequently, the traditional distinction made between broadcast and print news -- which was rooted in the scarcity of television stations particularly -- increasingly is moot. Recognition was given to this fact of media life when, in 1987, the Fairness Doctrine was abolished, a requirement regarding coverage of issues that applied to broadcast media but not print. The legal and regulatory framework within which the press functions will likely further evolve as additional change, technological and otherwise, shape the media in this new century. What does not evolve, however, in the view of its defenders, is the principle of freedom of the press. It remains the cornerstone of liberty in America.
(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
