Freedom of the Press

1. Freedom of the Press By: Karen Gray & Richelle Byrd

2. Freedom of the press-The right of the media to print, or otherwise disseminate, speech, ideas and opinions without fear or harm of prosecution as long as said material does not interfere with another citizen’s freedoms • Applies to: • Print media (newspapers and magazines) • Broadcast media (radio stations, television stations, television networks) • Internet-based media (World Wide Web pages, webblogs) • First Amendment: • Text: “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.” • Original meaning: Originally the right of freedom of the press included in the First Amendment only applied to the federal government. • Current: However, after the ratification of the 14th Amendment and the Near v. Minnesota court case, it was expanded to include the states as well.

3. Evolution: • Although the Constitution contained a clause for freedom of the press in the Bill of Rights, the government originally set many controls on the press and quieted the opinions of most early journalists. Later, the First Amendment was put on the back burner when the federal government muzzled the press through the use of the Sedition Act of 1798, which made any speech or writings against the U.S. government unlawful. This was a clear violation of the First Amendment, however, fear spurred the government to pass the law until its expiration in 1801. Prior to the 1930s, the Supreme Court position on First Amendment freedoms was to suspend free speech and press if the expressions constituted a “reasonable tendency” to endanger society. These expressions were judged by whether they created a “clear and present danger” to society. After the 1931 Near v. Minnesota Case, restrictions on freedom of the press were severely limited and the liberty greatly expanded. Since that time, freedom of the press has continued to expand and now applies to all states with only limitations that pose a threat to national security as determined by the supreme court. Newspaper journalists seem to have gained advantages over their colleagues in the broadcast media. The broadcast press has remained closely scrutinized by government. Policy makers and the courts justify restrictions by arguing that the airwaves used to broadcast the news are a limited commodity and not readily available to each individual to gain access to. This was the reasoning given by the Federal Communications Commission (FCC) and the Supreme Court in its 1969 decision, which upheld the constitutionality of the Fairness Doctrine, in Red Lion Broadcasting v. FCC. However, in 1987, the FCC abolished the fairness doctrine and there have been several attempts to pass legislation that will make the FFC decision permanent.

4. Red Lion Broadcasting Company v. FCC Near v. Minnesota The Zenger Trial The Bill of Rights Branzburg v. Hayes 1737 1791 1931 1969 1972 1776 1868 1971 1987 1957 FCC abolished the fairness doctrine The Virginia Declaration of Rights New York v. United States 14th Amendment Roth v. United States

6. Near v. Minnesota • Background: In 1931, Jay M. Near published a story in The Saturday Press in which he attacked public officials on the notion that they were associated with gangsters. Minnesota officials obtained an injunction preventing Near from publishing his newspaper under a state law that prevented the publication of “scandalous and defamatory” newspapers. • Amendment: Did the Minnesota “gag law” violate the First Amendment. • Court decision: The state law was determined unconstitutional. The supreme court held that, except in rare cases - during wartime, the publication of sailing dates of transports or number and location of troops-, censorship is unconstitutional. Also, the First Amendment is incorporated in the Fourteenth Amendment and therefore applies to the states. This strengthened the notion that a prior restraint of the press violates the First Amendment. • Subsequent legislation: This case was later a key precedent in New York Times v. United States.

7. New York Times v. United States • Background: In 1971, the Nixon Administration tried to prevent the New York Times and Washington Post from publishing classified information from “ThePentagon Papers” regarding the history of US involvement in Vietnam. The president argued that prior restraint was necessary to protect national security. • Amendment: Did the threat to national security outweigh the freedom of the press guaranteed by the First Amendment? • Court decision: Although the justices thought that the New York Times had probably gone too far in publishing the Pentagon Papers, they found nothing in the law to prevent the newspaper from doing so. The court ruled in favor of the New York Times, and a majority held that the First Amendment was absolute. This decision reinforced the Court’s stance on prior restraint and showed that they would not censor the press on order of the federal government.

8. Roth v. United States • Background: This was two combined cases. In 1957, Samuel Roth, who ran a literary business in New York was convicted under federal statute for sending “obscene” materials through the mail. In its companion case, Alberts v. California, David Alberts was convicted under a California statute for publishing pictures of “scantily-clad women.” • Amendment: Did the federal or California obscenity restrictions infringe upon the First Amendment. • Court decision: The court held that obscenity was not “within the area of constitutionality that protected speech or press.” In other words, obscenity was not protected by the First Amendment. Also, the court redefined what constitutes obscene material as any material “utterly without redeeming social importance.” And the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” So, instead of basing a judgment on how it might influence the most susceptible people, judgment is based on community standards.

9. Branzburg v. Hayes • Background: In 1972, Paul Branzburg wrote two articles concerning drug use in Kentucky. His sources requested to remain confidential, but Branzburg was subpoenaed before a grand jury and ordered to name his sources. He refused, citing privilege under the Press Clause, and was held in contempt. • Amendment: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment? • Court decision: The court ruled against the existence of reportorial privilege in the Press Clause of the First Amendment. Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy.” The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation. However, White did establish a test citing whether a reporter can be compelled to testify before a grand jury. Basically, the government must show a substantial relation between the information sought and overriding state interest. • Subsequent history: While he sided with the majority, justice Powell emphasized that the asserted claim to privilege should be judged on its facts. Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege does indeed exist, but was simply not warranted in the specific case of Branzburg. Its application depends on two factors: (1) that the information sought was crucial to a litigant's case and (2) that the information could not be acquired from any other source.

10. Red Lion Broadcasting Company v. Federal Communications Commission • Background: The FCC’s fairness doctrine requires radio ad television broadcasters to present a balanced and fair discussion of public issues on the airwaves. In 1969, the FCC declared that the Red Lion Broadcasting Company had failed to meet its obligation when it ran a program that constituted a personal attack on a journalist named Fred J. Cook. The FCC ordered the company to send a transcript of the broadcast to Cook and provide reply time. • Amendment: Do the FCC's fairness doctrine regulations, concerning personal attacks made in the context of public issue debates and political editorializing, violate the First Amendment's freedom of speech guarantees? • Court decision: The Court held that the FCC’s fairness doctrine regulations enhanced rather than infringed the freedoms guaranteed by the First Amendment. Because there is a finite number of broadcast frequencies, the Court ruled that licensed broadcasters are obliged to present a variety of views on all subjects covered in their programming. This decision provided the FCC with more regulatory power. • Subsequent legislation: In 1987, the FCC abolished the Fairness Doctrine in the Syracuse Peace Council decision, which was upheld by a different panel of the Appeals Court for the D.C. Circuit in February 1989.

11. United States v. American Library Association • Background: In 2000, Congress passed the Children’s Internet Protection Act, requiring public libraries to install internet filtering software on their computers in order to receive federal funding. The American Library Association challenged the law, claiming it violated the First Amendment rights of their patrons. The Pennsylvania District Court ruled that CIPA was indeed unconstitutional. The case was then appealed to the United States Supreme Court. • Amendment: Does the use of internet filtering software violate Frst Amendment rights? • Court decision: The Court reversed the district court’s decision and held that, because filtering software does not violate their patrons’ First Amendment rights, CIPA does not require libraries to infringe upon the constitution and is a valid exercise of Congress’s spending power. The Supreme court explained that the internet is simply another means of garnering information in a school or library and is no more than an extension of the book stack. • You have hit a bump in the road…

13. http://www.youtube.com/watch?v=9dOOFB8fs38&feature=related JFK Conspiracy Speech The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. For we are opposed around the world by a monolithic and ruthless conspiracy that relies primarily on covert means for expanding its sphere of influence--on infiltration instead of invasion, on subversion instead of elections, on intimidation instead of free choice. It is a system which has conscripted vast human and material resources into the building of a tightly knit, highly efficient machine that combines military, diplomatic, intelligence, economic, scientific and political operations. Its preparations are concealed, not published. Its mistakes are buried, not headlined. Its dissenters are silenced, not praised. No expenditure is questioned, no secret is revealed. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. I am asking your help in the tremendous task of informing and alerting the American people. For I am confident that with your help man will be what he was born to be: free and independent. http://www.freedomhouse.org/template.cfm?page=251&year=2009