Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment, US Constitution

Freedom of the press is unique in the US constitution in that it guarantees protection not for specific individuals, but for an institution: the press.

That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.

Justice Stewart, Houchins v. KQED, 438 US 1, 17 (1978)

That freedom of the press is critical in creating debate on public issues has been accepted since the Constitution was ratified. However, the phrase “freedom of the press” is rather vague. What, exactly, constitutes the press? To what freedoms are we entitling it? The Supreme Court has thus had to interpret the First Amendment’s guarantee of press freedom, establishing precedent which courts can, in the future, uphold. Two rights the Supreme Court has found fundamental to a free press are the freedom to publish and the freedom to circulate.

Freedom to Publish

The need for free publishing arose in response to the old English licensing system. Since all publications had to be licensed by the government, the government maintained a stranglehold on the press. At the end of the 17th century, the British government decided to end the licensing system, allowing anyone to publish without official approval of the government. The idea that anyone could publish material made its way over to the colonies, and became the foundation for the freedom to publish.

In the late 1920’s, JM Near began publishing a newspaper in Minneapolis alleging that gangs were running the local government, and officials were overwhelmingly corrupt. The governor, Floyd B. Olson, filed an injunction with the courts that prevented Near from publishing his paper, or papers containing similar material. Near challenged the constitutionality of the law allowing the injunction, and the case made its way to the Supreme Court. The court found that

Liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.

Near v. State of Minnesota Ex Rel. Olson, 283 US 697 (1931)

In other words, Near had every right to publish his material, regardless of whether or not it offended local officials.

One of the key terms here is previous, or prior restraint. The term refers to any actions the government may take to prevent a publication. Censorship, or requiring government approval to publish, is one form of prior restraint. Another is an injunction, or legal mandate not to publish certain material. Both of these, in general, are considered as opposing an individual’s First Amendment rights.

Freedom to Circulate

The Supreme Court has also found that in order to be effective, publishers must be free to not only to publish, but also to circulate their materials.

Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.

Ex Parte Jackson, 96 US 727 (1877)

In order to perform its fundamental role as a forum for discussion, the press must be free to publish materials of differing, and sometimes inflammatory opinions. But these publications are useless unless they reach their intended audience, the public. Hence it is of paramount importance that the press be able to distribute these materials as well.

In addition to these fundamental freedoms, the Supreme Court has granted the press a series of privileges that it has interpreted as critical to a truly free press. Two of the most important are the Sullivan Privilege and the Reporter’s Privilege.

Sullivan Privilege

In March of 1960 the New York Times carried a civil rights add entitled “Heed Their Rising Voices.” The add listed actions taken against civil rights protesters, some of describing actions of the police force. Some of the events described were not factual. For example, the ad stated that Martin Luther King Jr. had been arrested seven times, when in actuality he had been arrested only four. The supervisor of the Montgomery Police Department, LB Sullivan, sued the New York Times, claiming that the advertisement defamed him, since some of the statements were untrue. The Supreme Court noted in the case that

We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

 The Supreme Court weighed whether or not truth was necessary to prevent libel, and found that if truth were the only defense for libel

would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so… The rule thus dampens the vigor and limits the variety of public debate.

New York Times Co. v. Sullivan, 376 US 254, 279 (1964)

 

Hence the Supreme Court granted the press the right to make statements it believes to be true, but may, in effect, turn out to be inaccurate. The court adopted the actual malice standard, stating that an individual must be found to have published material he or she knew was untrue. However, it is important to note that this ruling was aimed largely at public officials, and that actual malice is not necessary to prosecute libel when the defamation is against a private individual.

Reporter’s Privilege

Reporter’s Privilege refers to a reporter’s right to keep sources confidential. Most courts, including the US Supreme Court, have found this right to be constitutionally guaranteed, albeit with some limitations. Many states have passed reporter’s shield laws, which further this protection.