Freedom of The Press

How is freedom of the press protected in the Constitution?

Freedom of the press is guaranteed under the First Amendment. The Constitution states that “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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The First Amendment also applies to the state governments through the 14th Amendment.

Although the First Amendment only references Congress, the Supreme Court has clarified that the scope of protection for the press from undue censorship includes any government agency, whether at the local, state, or federal level. This protection allows publishers to distribute information or opinions without government interference, prior constraint, or prosecution. While all branches have a hand in protecting the freedom of the press, the Supreme Court, through the power of judicial review, decides when the freedom of the press is being infringed.

Why is press freedom important?

The Founding Fathers believed the right to criticize the government and vote out incapable leaders were essential to self-governance. To exercise these rights, the public must have access to accurate and diverse sources of information. In this way, a free press is vital to holding elected officials and government institutions accountable. Additionally, freedom of the press makes elected officials aware of the public’s preferences on different issues.

Freedom of the press is also vital to setting the political agenda in a country. The media can educate citizens about new political topics and bring said issues to the forefront of the political agenda. A free press can also help strengthen confidence in government transparency and trust in government.

What are the potential drawbacks for society having a free press, and how is it protected?

An uncensored media can encourage the spread of factually inaccurate, intentionally deceptive, incomplete, one-sided, and otherwise dangerous information that could harm the public interest. For example, during the COVID-19 pandemic, information regarding the virus’s origin, motivations behind the public health response, scientific data about the virus and its spread, and vaccine safety were widely disseminated across social media platforms, as well as through books and other published material available for purchase through online sellers.

The government’s discretionary role can be complex at times, either in its effort to encourage greater visibility for certain sources of information deemed relevant and in the public’s best interest while censoring, suppressing, or otherwise limiting information due to the perceived potential of spreading misinformation. The challenge, like any decision involving a complex set of problems that encompass a varied degree of information, data, and scientific discrepancies and beliefs, is the government’s role in determining whether such information is, in fact, accurate or otherwise relevant and in the best interest of the public, and protected under free speech.

As the government’s  responsibility comes with a certain level of subjectivity, in some instances, the process in which information and data were considered protected under free speech caused harm, and in other instances, content that was considered misinformation but later determined to be plausible or relevant to the safeguard of the public’s overall health and well-being was suppressed. Both cases can ignite distrust in the government and public health entities. Such distrust can inhibit the government’s ability to serve the public, as well-intentioned policies are more likely to face backlash and resistance in the future.

Similarly, a free press can harm the security of the United States by publishing secret information about military operations or diplomatic efforts. While the government can prosecute reporters and editors for revealing secrets, these prosecutions are extremely rare, as they open the government to claims that it is simply trying to prevent the disclosure of embarrassing information.  

What exceptions, if any, exist to this freedom?

Freedom of the press is not unrestricted. The Supreme Court has agreed that, in certain situations, the government is permitted to restrict the freedom of the press. Current law prohibits the publication of libel, slander, obscenity, pornography, classified information, fighting words, and trade secrets.

For example, Dominion Voting Systems recently sued Fox News for defamation. Dominion’s technology is used to tabulate votes in many state elections. In their case, Dominion claimed that Fox News made false statements on air about Dominion engaging in election interference. Ultimately, Fox News settled the lawsuit, paying Dominion $787.5 million and admitting to making false statements about Dominion on air.

Prior restraint is when the government prohibits the media from publishing secret information. In deciding cases of prior restraint, the courts must consider when the importance of security outweighs the freedom of the press and the right for the public to be informed. The government must demonstrate a compelling state interest whenever using prior restraint. In most instances, the courts have determined prior restraint to be unconstitutional. In the 1971 case of New York Times v US, the Supreme Court allowed the publication of the Pentagon Papers, documents that contained top-secret information about the Vietnam War.

The publication of obscene material and pornography are other areas in which there are ill-defined limitations on the press. The Supreme Court uses a test (the Miller Test) drawn from the case of Miller v California in 1973 to decide whether something is obscene and can be restricted. The three requirements of the Miller Test are:

1. Whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest.
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

That test has been used to restrict the press in many cases. For example, the Federal Communications Commission (FCC) can regulate language on television.

How has the exercise of press freedom changed over time?

One of the first challenges to freedom of the press was the passage of the Alien and Sedition Acts of 1798, making it illegal to print or say anything malicious about the government. This legislation was unpopular and expired before the courts could rule on the constitutionality of the action.  

Issues related to freedom of the press did not come to prominence again until the 20th century. The Espionage Act of 1917 significantly affected freedom of the press. This legislation was intended to prevent the transfer of sensitive information regarding military and national defense secrets to enemy nations. However, the Act was used to target political opponents of President Wilson, who opposed the war, preventing  15 antiwar publications from being distributed via mail. The list of prohibited publications included Masses magazine, a prominent socialist, antiwar publication at the time.

Subsequently, federal courts have established stronger protections for the media.

• In 1927, the Supreme Court addressed the issue of making false claims in Whitney v California. Justice Brandeis established the counter-speech doctrine, arguing that the correct response to “false speech” was to have “more speech,” meaning the spread of correct information rather than government prohibitions.
• In the 1964 New York Times v. Sullivan case, the Supreme Court held that one cannot be sued for defamation or libel by a public government official unless it can be demonstrated that the author knew the claims were false or in reckless disregard for the truth. This ruling solidified the ability of citizens to criticize government officials.
• In the 1971 New York Times v. United States case, the court ruled that the government could not use prior restraint to prevent the publication of the Pentagon Papers, which contained classified military information.
• Section 230 of the Communications Decency Act of 1996 protects social media companies from being found liable for publishing content posted by users.