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Communication Freedom of the Press
by
Dwight Teeter

Introduction

Freedom of the press refers to the freedom to criticize government without suffering official interference or punishment, before or after publication. “Freedom of the press,” “freedom of speech,” and “freedom of expression” are terms often used together in the United States, with “the press” primarily connoting print and electronic media. This bibliography concentrates on freedom of the press as defined by some major American and English writers and in decisions of the Supreme Court of the United States. Because of the advent of electronic media and of the internet and of other “new media” or “social media” during the 20th and early 21st centuries, the term “freedom of the press” is used to cover mediated communication in general. The clearest indicator of press freedom is that opponents of government or of government leaders, laws, or policies can publish effective criticisms without suffering government retaliation in the form of fines, imprisonment, or even death. That definition does not include communications that may break laws of general applicability, such as the law of fraud, nor violation of a contract. It also does not cover extralegal controls such a communicator’s sense of the community’s range of permissible expression, or public pressures (including mob action) against the press in times of crisis. The legal definition of “freedom of the press” in the United States begins with the forty-five words of the First Amendment to the Constitution, adopted 15 December 1791: “Congress shall make no law respecting an establishment of religion, or the free exercise thereof, 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 absolute words of prohibition against congressional statutes tampering with speech or press freedom were, however, overridden early in the nation’s history by Congress in 1798, just seven years after the adoption of the First Amendment. Congress then passed the Alien and Sedition Acts of 1798, which, among other things, made it a crime to criticize the federal government or government leaders. These short-lived enactments, which fueled bitter partisan controversy in the new nation, are discussed in the Historical Context section. Freedom of the press is not static: it rises in times of peace and diminishes in times of war or national crisis, when most needed by society.

Books of Search

Books of search are used to find legal materials. The general citing protocol is that it is bad form to quote from a legal encyclopedia as an authority. Books of search guide researchers into a subject area. One place to start is in a textbook on legal research. For example, Barkan, et al. 2009a and Barkan, et al. 2009b are textbooks offering overviews of legal materials, paper and electronic, with information on how to use them. Legal encyclopedias available in law school libraries are updated by the periodic insertion of “pocket parts” placed in the back cover of each volume. Legal encyclopedias available in law school or government libraries provide valuable summaries of topic areas, with citations for scholars to use as they begin to explore a subject. The leading encyclopedias are American jurisprudence 2d and Corpus juris secundum.

  • Barkan, Steven M., Roy M. Mersky, and Donald J. Dunn. 2009a. Fundamentals of legal research. 9th ed. New York: Foundation.

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    This book, long the standard reference on legal research, has been revised to cover methods ranging from traditional paper sources to use of the internet and other electronic resources such as WestLaw. It thoroughly covers the organization of state and federal court reports, statutes, and tax research, and also provides helpful approaches to administrative law and constitutional law. It contains an introduction to legal research in the United Kingdom.

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  • Barkan, Steven M., Roy M. Mersky, and Donald J. Dunn. 2009b. Legal research illustrated. 9th ed. New York: Foundation.

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    This is an abridgement of the more extensive volume listed in this section. It does not have the original volume’s extensive list of legal abbreviations, nor does it contain information on legal research in US territories.

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  • Corpus juris secundum. 1936–.

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    Conventionally abbreviated C.J.S. Terms itself “A contemporary statement of American law as derived from reported cases and legislation.” C.J.S. has more than four hundred broad topics.

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  • West Group. 1962–. American jurisprudence 2d: A modern comparative text statement of American law, state and federal. St. Paul, MN: West Group.

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    A legal encyclopedia, conventionally abbreviated Am.Jur.2d, which provides information on legal topics, including discussions of authorities and controlling cases. Published by Lawyers Cooperative Publishing of Rochester, NY, until the mid-1990s.

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Textbooks

Communication law textbooks are aimed at undergraduate communication students or at law school students. Law school textbooks tend to be casebooks, with significant excerpts of court decisions presented for students to analyze in the traditional case method of instruction. In some degree, all communication law textbooks cover First Amendment and free press theory and relevant court decisions. Related to the constitutional framework, special emphasis is given to the areas of defamation, invasion of privacy, access to government information, advertising regulation, copyright, and antitrust law. Social-science approaches are rare in both undergraduate law textbooks, which emphasize staying out of trouble, and in law school case-method texts. For example, Carter, et al. 2008 is by far the most detailed on electronic mass media, and like other textbooks listed has increasingly moved to cover developments in new media. Franklin, et al. 2004 is especially strong in discussing government efforts to increase secrecy and on problems of access to information in wartime. Hopkins 2010 provides discrete chapters by individual authors to summarize areas of communication law. Middleton and Lee 2010, Pember and Calvert 2010, and Trager, et al. 2010 are aimed at undergraduate students. Teeter and Loving 2008 is a traditional text on mass communications law that first appeared in 1969.

  • Carter, T. Barton, Marc A. Franklin, and Jay B. Wright. 2008. The First Amendment and the Fifth Estate: Regulation of electronic mass media. 7th ed. New York: Foundation.

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    This massive law school casebook on the law of electronic mass media presents substantial excerpts of congressional statutes, decisions, and policies of the Federal Communications Commission, and courts.

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  • Franklin, Marc A., David A. Anderson, and Lyrissa Barnett Lidsky. 2004. Mass media law: Cases and materials. 7th ed. New York: Foundation.

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    This tightly organized casebook, kept up to date with annual supplements, offers important coverage of increased government secrecy after the attacks of 11 September 2001. Cases and materials deal with openness of trials, attacks on freedom of information, and problems in war coverage. Attention also is given to problems involving consolidation of traditional media and convergence of information delivery systems brought about by new technologies.

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  • Hopkins, H. Wat, ed. 2010. Communication and the law. Northport, AL: Vision.

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    This concise anthology of chapters on major communication law topics by eighteen well-known journalism teacher-authors is used as an undergraduate textbook.

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  • Middleton, Kent R., and William Lee. 2010. The law of public communication. 7th ed. Boston: Allyn & Bacon.

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    Intended for undergraduates, this textbook is updated each year with new court decisions and laws. Illustrations assist in explaining concepts.

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  • Pember, Don R., and Clay Calvert. 2010. Mass media law. 17th ed. New York: McGraw-Hill.

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    This popular, annually updated textbook is well attuned to new media developments, including internet developments and video games. This book is especially strong on ethical as well as legal issues, particularly where privacy law is concerned.

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  • Teeter, Dwight L., Jr., and Bill Loving. 2008. Law of mass communications: Freedom and control of print and broadcast media. 12th ed. New York: Foundation.

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    Aimed at undergraduates, this sizeable textbook (first published in 1969) sometimes is used in graduate courses and in law schools. Especially detailed information is provided on libel suits, privacy law, advertising regulation, and copyright law.

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  • Trager, Robert, Joseph Russomanno, and Susan Dente Ross. 2010. The law of journalism and mass communication. 2d ed. New York: McGraw-Hill.

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    This concise yet complete textbook aims at the 21st century’s highly visual university students, providing useful timelines, charts, and tables, and is especially strong in the areas of broadcasting and new media law.

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Journals

Research and scholarly commentary on freedom of the press appears in numerous refereed journals serving a variety of fields, including law, mass communication, political science, and history, often in response to continuing or developing issues. Coverage of press freedom therefore is sporadic, but it can be found in Journalism and Mass Communication Quarterly, in Journalism History, in the Journal of Broadcasting and Electronic Media, and especially in Communication Law & Policy and in the Federal Communications Law Journal. A relative newcomer, The William & Mary Bill of Rights Journal. concentrates topically on expression issues.

Historical Context

The historical context of freedoms of the press are best explored here and in the following subsections on Origins of Press Freedom, Assessing Press Performance, 20th- and 21st-Century Issues, and Free Press Theory. Freedom of the press frequently is taught by chronicling governmental assaults on that freedom. Freedom of the press is a broader idea than the freedom mentioned by the First Amendment, with journalists and civil libertarians consistently urging broader freedom. These individuals’ efforts to broaden the extent of freedom are contested by others who resist change, and who see too much liberty as dangerous. Many historians have tried to assess what the First Amendment meant to the 18th-century Americans, who created a constitution lasting well over two hundred years, and what decisions of the Supreme Court of the United States say it means. Levy 1960 argued that Chafee 1941 was factually wrong in contending that the intent behind the First Amendment was to do away with the law of seditious libel, which criminalized criticism of government. Levy declared that the Revolution, instead of establishing press freedom, almost got rid of it. Levy 1985 modified his views somewhat, conceding that there was more freedom of expression in fact during the Revolution than he had first believed. Chafee, an iconic Harvard professor of law, in Chafee 1941 considered more than seditious libel in the volume Levy criticized. Chafee fervently argued against government excesses stifling expression in wartime, with World War I as a terrifying example of suppression. Stone 2004 likewise urged government to adhere to traditional freedoms, even in the aftermath of the terrorist attacks on the United States of 11 September 2001. Main 1961 provided a history of Anti-Federalist activities in the 1780s that helped bring about a Bill of Rights. Miller 1969 addressed intricacies of the US Supreme Court’s decision making, emphasizing use of history-as-precedent. The most important history of free expression is Siebert 1952, a magisterial study of press controls in England from 1476 to 1776, explaining controls that still are on the press, in varying degrees, in 21st-century America.

  • Chafee, Zechariah, Jr. 1941. Free speech in the United States. Cambridge, MA: Harvard Univ. Press.

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    This classic study first appeared at the end of World War I to argue against excesses of censorship under the Espionage Act of 1917 and its 1918 “Sedition” amendment. This book was reissued in updated form in 1941 to urge preserving freedom in a time of the heightened international stresses that erupted into World War II. Reprinted in 2001 (Union NJ: Lawbook Exchange).

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  • Levy, Leonard W. 1985. Emergence of a free press. New York: Oxford Univ. Press.

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    The author modified some conclusions reached in his Legacy of suppression (Levy 1960). Upon further research, Levy conceded that the late 18th-century press in America was somewhat more vigorous in opposing government power than Legacy asserted. Levy declared that what the First Amendment said was more important than what the framers meant.

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  • Levy, Leonard W. 1960. Legacy of suppression: Freedom of speech and press in early American history. Cambridge, MA: Belknap.

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    This revisionist history criticized Zechariah Chafee’s contention that the framers of the First Amendment intended to wipe out the common law of sedition.

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  • Main, Jackson Turner. 1961. The Anti-Federalists: Critics of the constitution, 1781–1788. Chapel Hill: Univ. of North Carolina Press.

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    Reactions of opponents of the 1787 Constitution defined divisions between adherents of limited government and those who favored a centralized state and feared majority rule. Anti-Federalists’ complaints—listing protections left out of the draft Constitution, including freedoms of religion, press, speech, and the right to trial by jury—led the Federalists to promise a Bill of Rights.

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  • Miller, Charles. 1969. The Supreme Court and the uses of history. Cambridge, MA: Harvard Univ. Press.

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    The author provided an insightful study of the Supreme Court’s evidence to decide cases, especially in terms of using slanted or purposefully incomplete readings of history to buttress justices’ legal opinions.

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  • Siebert, Fredrick Seaton. 1952. Freedom of the press in England, 1476–1776: The rise and decline of government control. Urbana: Univ. of Illinois Press.

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    This study is fundamental to scholarly research on freedom of expression in both England and the United States. Generalizing from ancient controls he found in England, Siebert devised his seminal “Proposition II” generalization: freedom of expression declines as stresses on government increase.

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  • Stone, Geoffrey R. 2004. Perilous times: Free speech in wartime from the Sedition Act of 1798 to the war on terrorism. New York: W.W. Norton.

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    Published in the aftermath of the 2001 attacks on the World Trade Center in New York and on the Pentagon, this important book traces the history of attacks on free expression in wartime, declared or undeclared.

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Origins of Press Freedom

Discussions of the origins of press freedom come from many sources, including those cited under Free Press Theories. Amar 1998 declares that present-day force for the Bill of Rights was provided by the Fourteenth Amendment to the Constitution (1868), declaring that no state shall deprive any person of life, liberty, or property without due process of law. Berger 1969 discusses the nature of judicial review, the Supreme Court’s power sometimes used to stop governmental efforts to restrict free expression. Levy 1967 collects documents about struggles over press freedom in the American colonies and the newly independent American nation from 1776 into the early 19th century. In a companion volume, Nelson 1967 provides documents from the early years of the United States into the mid-20th century. Rabban 1997 refutes the common assertion that there was little pro-free press argumentation during the 19th century. Rossiter 1961 is one of the many editions of the Federalist Papers, writings by leading proponents of the 1787 Constitution: Alexander Hamilton, James Madison, and John Jay. Much less familiar are the Anti-Federalists’ arguments, edited in Storing 1981, which makes available the neglected but important writings of the critics of the Constitution.

  • Amar, Akhil Reed. 1998. The Bill of Rights: Creation and reconstruction. New Haven, CT: Yale Univ. Press.

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    Contends that the Bill of Rights and the First Amendment today owe more to antislavery activists of the Reconstruction era after the Civil War than to the founding fathers. The Fourteenth Amendment, adopted in 1868 to protect rights of newly freed slaves, was used in the 20th century to nationalize the First Amendment.

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  • Berger, Raoul. 1969. Congress v. the Supreme Court. Cambridge, MA: Harvard Univ. Press.

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    A lucid discussion of the process of judicial review, the power of the Supreme Court to declare acts of Congress unconstitutional. Berger, unlike some other scholars, concluded that this power, not mentioned in the Constitution, was intended by the framers. Judicial review made possible the most important decisions on press freedom, Near v. Minnesota (1931) and New York Times v. Sullivan (1964).

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  • Levy, Leonard W., ed. 1967. Freedom of the press from Zenger to Jefferson. Indianapolis, IN: Bobbs-Merrill.

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    Material drawn entirely from primary sources, made accessible by thoughtful annotations, covers struggles for freedom of the press from the Zenger trial in colonial New York in the 1730s to Thomas Jefferson’s presidency, 1800–1808.

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  • Nelson, Harold L., ed. 1967. Freedom of the press from Hamilton to the Warren court. Indianapolis, IN: Bobbs-Merrill.

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    Primary source material is deftly annotated to highlight free press struggles from the expiration of the Alien and Sedition Acts in 1801 to key press decisions into the 1960s, notably the 1964 civil libel landmark decision, New York Times v. Sullivan.

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  • Rabban, David M. 1997. Free speech in its forgotten years. Cambridge, UK: Cambridge Univ. Press.

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    An important historical study questioning traditional historical statements that there was little debate or activity on freedom of expression in the years between the Civil War and World War I.

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  • Rossiter, Clinton, ed. 1961. The Federalist papers. New York: New American Library/Penguin.

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    These 1787 newspaper articles by Alexander Hamilton, James Madison, and John Jay urged adoption of the Constitution, stressing the need for a stronger central government to protect the nation. These writings contested Anti-Federalist complaints about the absence of guaranteed rights in the 1787 draft.

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  • Storing, Herbert, ed. 1981. The complete Anti-Federalist. 6 vols. Chicago, IL: Univ. of Chicago Press.

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    Oft-neglected 1787–189 newspaper essays and pamphlets by critics of the Constitution are assembled in six small volumes with excellent editor’s commentary. Although these writings did not forestall a stronger national government, they helped force a Federalist concession in the form of the Bill of Rights.

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Assessing Free Press Performance

Freedom of the press is said to be guaranteed by the First Amendment’s press clause, yet pieces of that guarantee are sometimes withdrawn by an overreaching government in times of crisis. The news media, by contrast, at times submit tamely to government and public pressure. Definitions of “the press” are evolving with development of new media and blogging. Anderson, a journalist turned law professor and leading First Amendment scholar, finds more protections for the press in the Constitution’s “freedom of speech” clause than in its press clause. Barron 1973 argues for a right of reply in the print media because their monopolistic ownership structure limits the range of information available to the public. Barron’s argument, however, was rejected by the US Supreme Court as violating the First Amendment. Bezanson 2003 views limitations on press freedom, including issues of truth and falsity, with a law professor’s insight. Blasi’s substantial essay (Blasi 1973) on the First Amendment’s “checking value” urges the press to serve as a counterbalance to overgrown government powers. Students should study Blasi’s suggestions while keeping in mind rapidly changing media structures in the United States, including the decline of traditional media and the rise of new media. Emerson 1970 is a major work on freedom of expression, with valuable questions on new media functions and freedom. Lofton 1980 finds the press sadly deficient in performing its watchdog role, and Smith 1999 provides a study of problems in government accountability in terms of access problems and the media’s lack of independence in covering wars.

  • Barron, Jerome A. 1973. Freedom of the press for whom? Bloomington: Univ. of Indiana Press.

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    Barron argues for access to the print media, analogous to the Fairness Doctrine (repealed in 1987–1988) then in effect for licensed over-the-air broadcasters. Barron argued this concept before the Supreme Court in Miami Herald v. Tornillo, 418 U.S. 241 (1971), but the Supreme Court ruled unanimously that the First Amendment protects print media from forced publication.

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  • Bezanson, Randall P. 2003. How free can the press be? Urbana: Univ. of Illinois Press.

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    Using key US Supreme Court decisions, Bezanson surveys freedom to publish in New York Times v. Sullivan (1964), freedom to decide what to publish in Miami Herald v. Tornillo (1972), and issues of truth and falsity in public affairs reporting in Harte-Hanks v. Connaughton (1977).

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  • Blasi, Vincent R. 1977. The checking value in First Amendment theory. American Bar Association Foundation Research Journal 3:521–649.

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    This seminal article argues for the rule of the First Amendment in creating a press to provide checks on government under the Constitution. Because government becomes increasingly powerful and more complex, Blasi posits that for the good of society, the professional press must serve as a watchdog on government.

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  • Calvert, Clay. 1999. And you call yourself a journalist? Wrestling with a definition of “journalist” in the law. Dickenson Law Review 103:411.

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    Is a blogger a journalist? Under some shield laws, to be able to protect sources or information, a person must be an employee of a traditional news organization such as a newspaper, magazine, or broadcasting station.

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  • Emerson, Thomas I. 1970. The system of freedom of expression. New York: Random House.

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    A legendary Yale law professor details the “complex mechanism” of freedom of expression in a democratic society. In this prescient book, written years before “internet” was an everyday word, Emerson poses a hard question: Can the US system of freedom of expression survive the shift from a laissez-faire environment to a mass technological society?

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  • Lofton, John. 1980. The press as guardian of the first amendment. Columbia: Univ. of South Carolina Press.

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    Surveys attacks on free expression in the 19th and 20th centuries, finding that establishment media tend to protect their own freedoms, ignoring or opposing the rights of dissidents or minorities. One frequent pattern was advocacy by establishment media urging government to silence “radicals.”

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20th- and 21st-Century Issues

It is a truism that no freedom is ever won once and for all, and that each generation must fight to retain or expand its constitutional freedoms. Balkin and Siegel 2009 offers a collection of innovative essays addressing expansion of First Amendment freedoms in the age of new media. Berger 1969a is a thorough introduction to the power of judicial review. Leone and Anrig 2007 addresses issues pitting individual security against government power and the USA Patriot Act of 2001 (updated 2005). Levy 1988 joined the noisy debate involving legal activists who would tie modern legal interpretations to what they claim to be the framers’ “original intent.” Lewis 1991. a highly readable book extolling the Supreme Court’s New York Times v. Sullivan decision, is regarded as a classic study, both for Lewis’s great storytelling and for his brilliant description of its impact and importance in American life.

  • Balkin, Jack M., and Reva B. Siegel, eds. 2009. The Constitution in 2020. New York: Oxford Univ. Press.

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    Twenty-seven essays by constitutional scholars address what the First Amendment and the Constitution should mean in 2020, after decades of court decisions supporting conservative political and social agendas. The editors write, “Each generation makes the Constitution its own” (p. 3).

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  • Berger, Raoul. 1969. Congress v. the Supreme Court. Cambridge, MA: Harvard Univ. Press.

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    Discusses judicial review, the Supreme Court’s power to declare acts of Congress and state governments unconstitutional. Berger, unlike some other scholars, concludes that this process, although not mentioned in the Constitution, was intended by the framers. Without judicial review, the two most important press freedom decisions—Near v. Minnesota (1931) and New York Times v. Sullivan (1964)—could not have occurred.

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  • Leone, Richard C., and Craig Anrig, Jr., eds. 2007. Liberty under attack: Reclaiming our freedoms in an age of terror. New York: Public Affairs Press.

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    This anthology criticizes the administration of President George W. Bush and a nonassertive Congress for valuing excessive security over concerns for personal liberties after the 11 September terrorist attacks on the United States.

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  • Levy, Leonard. 1988. Original intent and the framers’ Constitution. New York: Macmillan.

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    A famed historian of the Bill of Rights offers a massive study debunking claims of “original intentionalists” that they (and no one else) know the intentions of the framers of the Constitution, in an effort to narrow the scope of constitutional rights.

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  • Lewis, Anthony. 1991. Make no law: The Sullivan case and the First Amendment. New York: Random House.

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    Pulitzer Prize-winning reporter Anthony Lewis, renowned for his coverage of the Supreme Court of the United States, offers a moving narrative about New York Times v. Sullivan (1964), the decision that nationalized libel law and gave the news media heightened protection against political lawsuits.

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  • Powe, Lucas A., Jr. 1987. American broadcasting and the First Amendment. Berkeley: Univ. of California Press.

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    This historical study includes questions of the societal usefulness of licensing over-the-air broadcasters, comparing that to the legal treatment of unlicensed print media.

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Free Press Theory

Free press arguments were an important part of the period leading up to the American Revolution, and theoretical musings continue into the 21st century. There is something of a chicken-egg dilemma with the 18th-century struggles against British rule in the American colonies. The colonists sought more freedom against royal power and cast about for arguments to justify their strivings. Altschull 1990 provides an accessible survey of free press theory, starting with Milton in 1644 and extending into 20th-century theorizing. Baker 1989 offers a critique of marketplace theory, instead emphasizing free expression for self-development. Copeland 2006 outlines English “Leveller” religious views as expressed in free press terms by William Walburn and “Freeborn John” Lilburne. Jacobson 1966 is a splendid collection of works by the influential English 17th-century dissident journalists Trenchard and Gordon. Important 17th-century English philosophers who provided revolutionary arguments to 18th-century colonists are represented by Locke 2003 and by Milton 1933. Smith 1988 explains the role of English Enlightenment philosophy in justifying free press ideas for early American printers. Stevens 1982 surveys pragmatic values in press freedom. Wortman 1970 is an important example of free press theory born in struggles over the Alien and Sedition Acts of 1798–1801.

  • Altschull, J. Herbert. 1990. From Milton to McLuhan: The ideas behind American journalism. New York: Longman.

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    This is a journalism scholar’s history of ideas, cutting across John Milton’s plea for unlicensed printing in England in Areopagitica (1644) to John Locke and David Hume, to John Stuart Mill, to Marshall McLuhan well into the 20th century.

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  • Baker, C. Edwin. 1989. Human liberty and freedom of speech. New York: Oxford Univ. Press.

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    Baker argues that the “marketplace of ideas” philosophy is flawed. He urges a “liberty theory” as a replacement, with speech as an arena of individual freedoms from some government limitations. Liberty of expression is crucial to individuals’ self-development and self-realization.

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  • Copeland, David A. 2006. The idea of a free press: The Enlightenment and its unruly legacy. Evanston, IL: Northwestern Univ. Press.

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    The beginning of printing led to the idea of free press. The ideas of the English Leveller movement, with its spokesmen William Walwyn and John Lilburne—along with the writings of Locke, Milton, and others—became part of the revolutionary heritage of the United States.

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  • Jacobson, David. 1966. The English libertarian heritage: From the writings of John Trenchard and Thomas Gordon and the Independent Whig and Cato’s Letters. Indianapolis, IN: Bobbs-Merrill.

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    English dissident journalists of the 17th century provided 18th-century American colonists protesting British rule with a rich array of defiant arguments to use against royal authority.

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  • Locke, John. 2003. Two treatises of government and a letter concerning political toleration. Edited by Ian Shapiro. New Haven, CT: Yale Univ. Press.

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    The writings of John Locke (b. 1632–d. 1704) urged toleration for a diversity of opinions and a right to self-defense against tyrannical governments. Locke, sometimes called the philosophical father of the American Revolution, wrote of a “natural right” of every person to life, liberty, and property. His ideas became part of the Declaration of Independence in 1776.

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  • Milton, John. 1933. Areopagitica: A speech for the liberty of unlicensed printing to the Parliament of England. In The student’s Milton. Rev. ed. Edited by Frank Allen Patterson, 731–754. New York: Appleton-Century-Crofts.

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    Milton, the iconic English poet, was revered by 18th-century Americans resisting English rule for his press freedom arguments. Milton, who wished to publish a pamphlet justifying divorce, was thwarted by censorship. His memorable words to Parliament, urging free and open debate, contended that through a self-righting process, truth will emerge. That idea is now rooted in American court decisions.

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  • Smith, Jeffery A. 1988. Printers and press freedom: The ideology of early American journalism. New York: Oxford Univ. Press.

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    Although the First Amendment does not define freedom of the press, Smith argues that 18th-century Enlightenment thought, in particular from English “radical Whig” writers, provided important ideological support for freedom to criticize government during the American Revolution.

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  • Stevens, John D. 1982. Shaping the first amendment: The development of free expression. Beverly Hills, CA: Sage.

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    This gracefully written, impressionistic book traces a number of topics, including pragmatic as well as theoretic value of ideas of the free expression. These ideas, from the ancient world to modern times, shaped the meaning of the First Amendment.

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  • Wortman, Tunis. 1970. A treatise concerning political enquiry, and the liberty of the press. New York: Da Capo.

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    An early example (first published in 1800) of American-grown free press philosophy, zealously opposing seditious libel punishments for criticism of government. Wortman, a Jeffersonian Republican, wrote in furious reaction to the Federalists’ Alien and Sedition Acts.

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Concepts of Control

As Fredrick S. Siebert notes in Freedom of the Press in England, 1476–1776 (Siebert 1952, cited under Historical Context), press freedom is never absolute. Siebert describes concepts and mechanisms used in England by autocratic rulers trying to control the output of printing presses. The centuries-old framework of controls Siebert found in England is still present, although the freedoms of speech and press guaranteed by the First Amendment limit their reach in the United States.

Prior Restraint and Licensing

Prior restraint (prepublication censorship) and licensing are ancient enemies of freedom, used in 16th- and 17th-century England to control the dangerous new information multiplier, the printing press. To journalists and civil libertarians of the 21st century, prior restraint is still the most hated form of censorship. If government can stop a publication before it is made or a message before it is issued, how can people defend themselves against government? Licensing, or previous government permission to distribute information, may be found in American broadcast regulation. Barnouw 1966, by a leading historian of broadcasting, explains the American system of licensing broadcasting stations to serve the public. Le Duc and McCain 1970 and Sterling and Kittross 2002 outline early efforts at broadcast regulation in the United States. Friendly 1981 is a lively history of the key US Supreme Court decision limiting prior restraint, Near v. Minnesota (1931), and Richstad 1970 describes an extreme form of prior restraint, martial law.

  • Barnouw, Erik. 1966.A history of broadcasting in the United States. Vol. 1, A tower in Babel. New York: Oxford Univ. Press.

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    The premier historian of broadcasting explains the airwaves chaos leading to the “scarcity principle” justifying licensing radio stations, and eventually television, “in the public interest, convenience or necessity.”

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  • Friendly, Fred. 1981. Minnesota rag. New York: Random House.

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    A detailed account of arguably the most important freedom-of-the-press decision in American history. In Near v. Minnesota (1931) the US Supreme Court limited prior restraint and also established a constitutional right to criticize public officials.

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  • Le Duc, Don, and Thomas McCain. 1970. The Federal Regulatory Commission in federal court: Origins of broadcast doctrines. Journal of Broadcasting (Fall): 393–410.

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    This article outlines early efforts by the FRC from 1927 through 1933, including early court challenges to broadcast regulation.

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  • Powe, Lucas A., Jr. 1987. American broadcasting and the first amendment. Berkeley: Univ. of California Press.

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    This book questions the societal usefulness of licensing over-the-air broadcasters in comparison to the legal treatment of the print media, which are not licensed in the United States.

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  • Richstad, Jim. A. 1970. The press under martial law: The Hawaiian experience. Journalism Monographs 17 (November): 1–41.

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    Within days of the 7 December 1941 Pearl Harbor attack by Japanese planes, civilian newspapers and radio stations were placed under military censorship. The author suggests that because the press in Hawaii accepted licensing tamely, such censorship may occur again in future crises.

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  • Sterling, Christopher, and John Michael. Kittross. 2002. Stay tuned: A concise history of American broadcasting. 3d ed. Mahwah, NJ: Erlbaum.

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    A general history including American broadcasting’s early history and efforts to create a workable system of government regulation through licensing and assignment of broadcast frequencies to stop overlapping signals, which were harming radio’s commercial growth.

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Court Decisions

The legal definition of freedom of the press in the United States begins with the forty-five words of the First Amendment, adopted 15 December 1791: “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 to peaceably assemble and to petition the government for a redress of grievances.” The absolute prohibition against congressional acts tampering with speech or press freedoms was ignored early in the nation’s history with the passage of the Alien and Sedition Acts of 1798. Freedom of the press therefore is not absolute, and it is not static. It rises in times of peace and diminishes in times of war or national crisis. In practice, the First Amendment and freedom of the press mean what the Supreme Court says those freedoms mean as it decides constitutional cases or controversies dealing with free expression.

  • Hazelwood School District v. Kuhlmeier, 494 U.S. 260 (1988).

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    The US Supreme Court held that public school officials have the power to impose prepublication censorship on public high schools, a concept that shows some signs of spreading to public universities. See the US Court of Appeals decision in Hosty v. Carter, 412F.2d 731 (7th Cir.2005).

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  • Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

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    Near is the major precedent limiting prior restraint. In invalidating a Minnesota law allowing prior restraint, the Supreme Court agreed with part of Blackstone’s definition that freedom of the press meant no prior restraint, but held that in limited cases such as troop movements, obscenity, or violence or overthrow of government, there could be prior restraint. The court disagreed, however, with Blackstone’s pronouncement that it was seditious libel to criticize public officials.

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  • Nebraska Press Association v. Stuart, 414 U.S. 539 (1976).

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    A state judge’s restrictive order banning press coverage of grisly details in official records involving a small-town Nebraska multiple murder case was ruled by the US Supreme Court to be unconstitutional prior restraint.

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  • New York Times v. United States, 403 U.S. 713 (1971).

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    The administration of President Richard M. Nixon sought an injunction against the New York Times’s publication of a leaked “Top Secret” historical study on involvement in the Vietnam War. The issue was decided in less than three weeks by federal courts: a US District Court issued an injunction, which was supported by a US Court of Appeals. The US Supreme Court then reversed by a vote of 6 to 3, following the Near v. Minnesota precedent outlawing prior restraint unless harm can be shown from a publication.

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Libel and Seditious Libel

An appreciation of the intertwined history of libel and seditious libel is important to understanding struggles for press freedom. In England, the long and bloody history of seditious libel—making words criminal if government or government officials were criticized—added up to a pernicious control over expression. In England before 1695, truth was not a defense to libel, hence the vicious doctrine of “the greater the truth, the greater the libel.” In the Sedition Act of 1798, truth was made a defense to criminal libel, but that was an empty concept when federal courts and prosecutors were all Federalists, and juries also were selected from Federalists. The 1801 expiration of the Sedition Act stopped federal prosecutions for that crime until World War I. Alexander 1972 provides a contemporary account of the trial and acquittal of the New York printer John Peter Zenger, who had been charged with seditious publications. (The offending publications had in fact been written by James Alexander.) Bezanson, et al. 1987 studies why people sue for libel, and Gillmor 1992 views libel as a failed protection for reputation because of misused libel defenses. Lewis 1991 draws on the author’s decades as a leading reporter of the Supreme Court to study what he views as a majestic decision in New York Times v. Sullivan. Rosenberg 1986 sees seditious libel and civil libel as different approaches used to protect powerful politicians and wealthy individuals. Peterson and Fite 1957, an admirable history of legal and extralegal assaults on freedom of expression during World War I, remains an important reminder that war and liberty are incompatible. Smith 1999 covers more years but comes to similar conclusions. Smith 1956 is the leading study of the monumentally unfair Alien and Sedition Acts of 1798.

  • Alexander, James. 1972. A brief narrative of the case and trial of John Peter Zenger. Edited by Stanley Nider Katz. Cambridge, MA: Belknap.

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    Originally published in 1735. Zenger was acquitted by a recalcitrant jury after his lawyer, Andrew Hamilton, flirted with contempt of court by arguing for the then legally nonexistent defense of truth. This case became a rallying point for dissident American colonists, although it set no new precedent.

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  • Bezanson, Randall P., Gilbert Cranberg, and John Soloski. 1987. Libel law and the press: Myth and reality. New York: Free Press.

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    The authors investigate why plaintiffs persist in bringing costly and often unsuccessful libel suits against the press. One finding is that media’s refusals to correct defamatory statements or to apologize often drive plaintiffs to court.

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  • Gillmor, Donald M. 1992. Power, publicity, and the abuse of libel law. New York: Oxford Univ. Press.

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    Constitutional protections crafted to provide information needed by citizens for self-government have been misused in pursuit of entertaining readers and viewers, a leading journalism educator argues.

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  • Lewis, Anthony. 1991. Make no law: The Sullivan case and the first amendment. New York: Random House.

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    A Pulitzer Prize–winning reporter provides a dramatic exposition of the landmark First Amendment decision in New York Times v. Sullivan (1964). Sullivan treated civil libel suits by public officials as punitive in the same sense as seditious libel was when it was a crime to criticize public officials. Public officials now must prove “actual malice”—publication with knowing falsity or reckless disregard for the truth—to collect damages from the news media.

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  • Peterson, H. C., and Gilbert Fite. 1957. Opponents of the war, 1917–1919. Madison: Univ. of Wisconsin Press.

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    In a time of war hysteria, the establishment press called for withdrawing of First Amendment freedoms from opponents of World War I.

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  • Rosenberg, Norman L. 1986. Protecting the best men: An interpretive history of libel. Chapel Hill: Univ. of North Carolina Press.

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    This remarkable study of libel in American history goes beyond labels such as “seditious libel” and “civil libel”: if a legal concept is used to punish or threaten the press, it endangers freedom of expression.

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  • Smith, James Morton. 1956. Freedom’s fetters: The Alien and Sedition Acts and American civil liberties. Ithaca, NY: Cornell Univ. Press.

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    This landmark study details the brief career of the Alien and Sedition Acts of 1798, which the Federalist-dominated government led by President John Adams used to prosecute major opposition speakers and printers. In response, Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions, calling the Alien and Sedition Acts unconstitutional, but their constitutionality was never tested.

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  • Smith, Jeffery A. 1999. War and press freedom: The problem of prerogative power. New York: Oxford Univ. Press.

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    Smith traces continuing tensions between press and government in wartime. Because the United States typically is in long-running declared or undeclared wars, government expectations that rights of free press and free speech be muted or suspended are predictable phenomena. He discusses roles of the media as both scapegoat and sycophant.

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  • Volokh, Eugene. 1996. Freedom of speech, permissible tailoring, and transcending strict scrutiny. University of Pennsylvania Law Review 144: 2417–2459.

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    Although Volokh criticizes the “strict scrutiny” test as used to protect expression, his article is a useful reminder of the US Supreme Court’s power to use this rigorous standard. To withstand strict scrutiny, a law or regulation must represent a compelling government interest and go no further than necessary to interfere with First Amendment rights.

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Court Decisions

In Garrison v. Louisiana (1966), the Supreme Court stipulated that truth and “actual malice” must be defenses to criminal libel, weakening that threat to the press and critics of government. New York Times v. Sullivan (1964) established that to collect civil libel damages for defamation, a public official must prove actual malice—knowing falsity or reckless disregard for the truth. The Sullivan decision protected critics of segregation in the South against crippling damage awards from state courts and made it unlikely that public officials would sue merely to harass the press. Gertz v. Welch (1974) expanded on the Sullivan decision, causing public figures (famous people or people in a specific public controversy) to have to prove actual malice to win damages.

  • Garrison v. Louisiana, 379 U.S. 64 (1966).

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    A criminal libel action brought against prosecutor “Big Jim” Garrison for criticizing judges in Louisiana was overturned using the “actual malice” formula from New York Times v. Sullivan (1964). The Supreme Court decision made truth a defense to criminal libel charges. Comment on public affairs was termed the essence of self-government.

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  • Gertz v. Welch, 418 U.S. 432 (1974).

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    This decision extended the reach of New York Times v. Sullivan, holding that public figures (famous people or people who inject themselves into public controversies) may not collect money damages in a libel suit unless they can prove “actual malice” (knowing falsity or reckless disregard for the truth).

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  • New York Times v. Sullivan, 376 U.S. 254 (1964).

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    A segregationist Montgomery, Alabama, official sued the Times because of an advertisement the newspaper had printed purchased by civil rights groups. This decision established the “actual malice” standard of proof for public officials, and also nationalized the law of libel, insisting that truth should be a defense.

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Contempt of Court and Legislature

Anyone who disobeys a lawful order of a court or legislature may be punished for contempt by fine, imprisonment, or both. The contempt power gives governments the authority to maintain order in official proceedings and to compel testimony if a witness will not obey a subpoena or answer questions under oath. Assertions justifying the contempt power go back at least to 18th-century England. The legal codifier Sir William Blackstone declared that judges had the contempt power “since time immemorial” to use a summary proceeding to punish for contempt of court. (A summary proceeding is one in which the judge singlehandedly makes the charge of contempt, convicts the person accused, and immediately starts the “contemnor’s” sentence: a fine, a jail sentence, or both.) Some thirty-seven states have adopted reporters’ privilege statutes (“shield laws”) that protect reporters’ sources, and in some cases, information, from grand jury or prosecutorial inquiries. Courts, however, as in Branzburg v. Hayes (1972), have set aside shield laws in order to compel testimony from reporters. Pleas that being forced to testify would harm the public interest by silencing confidential sources were unavailing in numerous courts. As of 2010, no federal shield law had been adopted. Goldfarb 1963 remains a useful overview of the contempt power. Gordon 1970 provides detailed background information on the history and rationale of reporters’ privilege.

  • Branzburg v. Hayes, 408 U.S. 65 (1972).

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    The Supreme Court rejected reporters’ privilege claims to refuse to identify sources when subpoenaed. The court held that the reporters’ First Amendment claims were outweighed by the obligation of all citizens to testify before a grand jury or at trial. This is an especially potent precedent against confidentiality claims in federal courts.

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  • Bridges v. California, 314 U.S. 242 (1941).

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    Justice Hugo Black’s majority opinion ruled against out-of-court (“constructive”) contempt, where a judge sought to punish newspaper critics. The Supreme Court held that a clear and present danger of disrupting judicial proceedings must be shown to result from out-of-court publications in order to support a contempt citation.

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  • Drogin v. Wen Ho Lee, 547 U.S. 1187 (2006); Lee v. Department of Justice, 287F.2d 15 (D.D.C. 2003).

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    A scientist sued major news organizations, including the New York Times, the Associated Press, and CNN, for libel. The news organizations would not identify government personnel who leaked defamatory information that caused the scientist to faces charges as a security risk. Reporters’ refusal to name sources led to a $1.6 million out-of-court settlement for the scientist.

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  • Goldfarb, Ronald L. 1963. The contempt power. New York: Columbia Univ. Press.

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    A classic study of the contempt powers, civil and criminal, judicial and legislative, with which journalists must contend.

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  • Gordon, A. David. 1970. “Protection of news sources: The history and legal status of the newsman’s privilege.” PhD diss., University of Wisconsin.

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    This massive and excellent history of journalists’ privilege not to reveal information provides thorough background of the concept up to 1970, including efforts to protect sources’ identities centuries ago.

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Taxation

Taxation of the press as a control dates back at least to 17th-century England. Taxes on printed paper and legal documents under the Stamp Act of 1765 in the American colonies was one of the grievances leading to revolution. In the 21st century, the general rule in the United States is that ordinary business taxes paid by all will not raise a legal dispute, but discriminatory or punitive taxation has long been a sore point in America. Bezanson 1994 takes an innovative, historically based look at taxation on the American media.

  • Bezanson, Randall P. 1994. Taxes on knowledge in America: Exactions on the press from colonial times to the present. Philadelphia: Univ. of Pennsylvania Press.

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    Bezanson compares taxation’s purpose in 17th- and 18th-century England—to keep the number of newspapers low and their circulations limited—with media taxation in late-20th-century America. He argues that an important question in any taxation case or subsidy is the effect it has on the diversity of information.

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Court Decisions

The Grosjean decision from 1936 is still the major Supreme Court statement against discriminatory taxation of the media. It provided the precedent applied in the Minneapolis Star & Tribune (1983) decision, where a state “use tax” singled out publications for unique treatment. As states search for new sources of tax revenues, it is quite possible that Leathers v. Medlock (1991) may prove instructive: taxes, to be acceptable, should affect all businesses but still can raise money from communication media.

  • Grosjean v. American Press Co., 297 U.S. 233 (1936).

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    The US Supreme Court considered a Louisiana 2 percent tax on publications with weekly circulation over 20,000. The tax affected thirteen newspapers, twelve of which opposed Governor Huey P. Long. Smaller newspapers were not taxed. The tax, facially discriminatory, was declared unconstitutional.

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  • Leathers v. Medlock, 499 U.S. 439 (1991).

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    The US Supreme Court held that Arkansas cable operators’ rights were not violated because a tax applied not just to media but was generally applicable to businesses.

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  • Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983).

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    The US Supreme Court held 8 to 1 that a Minnesota use tax on paper and ink that fell most heavily on the state’s largest newspapers was discriminatory and therefore unconstitutional.

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Obscenity and Indecency

Obscenity, however difficult for courts and legislatures to define, is expression unprotected by the Constitution. In 1873, Anthony Comstock and fellow decency crusaders convinced Congress to make it a crime to send obscene or indecent (without really defining those terms) information or devices through the mails. De Grazia 1992 is a provocative book on obscenity laws, using excerpts from works ranging from great to seamy, and the words of their creators who were prosecuted for creating art. It was not until 1957, in Roth v. United States (1957), that the US Supreme Court decided an obscenity case. Broadcasting has standards for allowable expression different from those for print media. Miller v. California (1973) continues to be an important effort to define obscenity and describe controls that governments may place on circulation of sexually explicit matter. According to F.C.C. v. Pacifica Foundation (1978), broadcasting “indecent” material that would be allowable for adults may be regulated by the Federal Communications Commission. Reno v. ACLU (1997) made a strong statement for Internet freedom, distinguishing it from the licensed “family medium” of broadcasting.

  • De Grazia, Edward. 1992. Girls lean back everywhere: The law of obscenity and the attack on genius. New York: Random House.

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    In the leading book dealing with obscenity laws, a notable civil liberties lawyer describes the tangled law of obscenity as it affects freedom and the arts.

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  • F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978).

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    An afternoon radio broadcast of comedian George Carlin’s “filthy words” routine resulted in the Federal Communication Commission’s punishment of the radio station, which was upheld by the US Supreme Court. The court upheld the right of the commission to completely forbid broadcasting of obscenity, and to regulate broadcasting of “indecency.”

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  • Miller v. California, 413 U.S. 15 (1973).

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    Adding to Roth v. United States (1957), the Supreme Court held that a test for obscenity must include local standards and that a state could legislate to forbid patently offensive descriptions of real or simulated sex acts. Offensive materials must be judged to have serious literary, artistic, political, or scientific value to merit protection.

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  • Reno v. ACLU, 521 U.S. 844 (1997).

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    The Supreme Court found the Communications Decency Act (part of the Telecommunications Act of 1996) to be unconstitutional. The CDA made it a crime to use the Internet to send “indecent” or “patently offensive” material to persons under eighteen years of age. The court found the CDA “over-inclusive,” suppressing information adults have a right to see. This decision distinguished the licensed family medium of broadcasting from the Internet.

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  • Roth v. United States, Alberts v. California, 354 U.S. 476 (1957).

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    The Supreme Court upheld the constitutionality of both federal and state anti-obscenity statutes. The court held that obscenity is not protected by the First Amendment, and devised the “Roth test”: whether “to an average person, using present-day standards, the dominant theme of the material appeals to prurient interest.”

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Added Freedoms

During the 20th century, new freedom of the press topics emerged: laws providing more access to government information, and, for the first time, limited First Amendment freedom for advertising (“commercial speech”). As of 2010, the Supreme Court of the United States had granted a constitutional, First Amendment right to gather information involving only the judicial branch.

Access to Government Information

Access to government information under law is mainly a 20th-century development, and necessary for a self-governing society. In the summer of 1787, the Constitutional Convention met in secret in Philadelphia, behind closed draperies, and the Constitution did not provide for public access to the federal government. The House of Representatives was open for general, nonemergency sessions from its first meetings in 1789, but the Senate was not opened to press and public until 1795. (The Senate remained closed when deliberating presidential appointments or treaties until 1929.) Courts in the United States have been presumptively open (with occasional aberrations) since the beginning of the republic, as spelled out in the words of the Sixth Amendment to the Constitution calling the right of a public trial. After World War II, the growing size and complexity of the federal government during the Cold War period exerted pressures to keep secrets from the public in the name of national security. But as Entman 1989 observes, media attention to reporting on national problems rose and fell from the 1950s through the 1980s. Entman argues that linkages between the press and a power elite of politicians and powerful institutions limited the amount and kind of information reported. Cross 1953 is an early argument for open government, and Davis and Splichal 2000 considers access problems and new technology. Hammitt, et al. 2002 provides a sweeping look at application of the nine major exceptions to openness under the federal Freedom of Information Act. The late Justice Potter Stewart (Stewart 1975) expressed the Supreme Court’s long-standing conclusion that the First Amendment does not include a right of access to government information. Stone 2007 explores problems in reporting on classified information, and Teeter 1992 argues that the First Amendment should include a public’s right to know about government records and actions.

  • Cross, Harold L. 1953. The people’s right to know. New York: Columbia Univ. Press.

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    The legal scholar Harold Cross made an important early argument for federal open government legislation with this book.

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  • Davis, Charles N., and Sigman L. Splichal. 2000. Access denied: Freedom of information in the information age.

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    This book considers access to electronic records, and concerns pitting freedom of information against claims of privacy involving new media technologies

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  • Entman, Robert M. 1989. Democracy without citizens: Media and the decay of American politics. New York: Oxford Univ. Press.

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    This scholar asserts that journalists, restricted by “the limited tastes of the audience and reliant upon political elites for most information, participate in an interdependent news system, not a free market of ideas. In practice . . . the news media fall far short of the ideal version of a free press as civic educator and guardian of democracy” (p. 8).

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  • Freedom of Information Act (U.S.), 5 U.S.C.A. § 552, amended by Pub. Law 93-502, 88 Stat. 1561–1564.

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    For history, text, and information on judicial interpretation of this act, and information on the Federal Privacy Act, see Allan Adler and M. H. Halperin (1984), Litigation under the federal Freedom of Information Act and Privacy Act (Washington, DC: National Security Archive). The FOI Act was signed into law by President Lyndon B. Johnson on July 4, 1966.

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  • Hammitt, Harry A., David L. Sobel, and Mark S. Zaid, eds. 2002. Litigation under the federal open government laws 2002. Washington: Electronic Privacy Information Center.

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    This useful book discusses “exemptions” under the Freedom of Information Act, and litigation interpreting those exemptions. These exemptions include national security information, information exempted by other statutes, trade secrets and commercial/financial information, privacy, investigatory files compiled for law enforcement purposes, and reports of an agency supervising financial institutions.

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  • Stewart, Potter. 1975. Or of the press. Hastings Law Journal 26: 631–637.

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    Justice Stewart wrote that the press is free to battle against secrecy and deception in government. The press cannot expect from the Constitution any guarantee that it will succeed, because the Constitution itself is not a Freedom of Information Act.

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  • Stone, Geoffrey R. 2007. Top secret: When our government keeps us in the dark. New York: Rowman and Littlefield.

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    A First Amendment scholar summarizes legal limitations on reporting “classified” information about the actions of the federal government. Stone considers the liabilities for public employees and for members of the press who reveal classified information, takes up the journalist-source privilege, and explores tensions between the nation’s interest in security and the public interest in being informed.

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  • Teeter, Jr., L. Dwight. 1992. The First Amendment at its bicentennial: Necessary but not sufficient. Journalism and Mass Communication Quarterly 69.1: 18–27.

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    The US Supreme Court’s reluctance to support a citizen’s right to gather information threatens freedom. In an era of increasing government power, assertions about the need for an informed citizenry in a democracy—ideas long linked to the First Amendment—are empty rhetoric absent a First Amendment right to gather information. Richmond Newspapers v. Virginia (1980) is the major Supreme Court decision to find a First Amendment basis for a right to gather information, declaring there is a right to attend criminal trials.

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Court Decisions

The federal Freedom of Information Act giving access to government information is limited by court decisions, as may be seen in CIA v. Sims (1985). The Supreme Court upheld prison regulations limiting access by media to individual prisoners, in Pell v. Procunier (1974). Richmond Newspapers v. Virginia (1980) used broad language about a right to gather information from criminal trials, and the Press-Enterprise (1986) decision extended openness to pretrial hearings.

  • Central Intelligence Agency v. Sims, 471 U.S. 159 (1985).

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    Individuals harmed by surreptitious testing of hallucinogenic drugs sued under the Freedom of Information Act (FOIA) to learn identities of universities and scientists who were contractors for the Central Intelligence Agency’s “MKULTRA” project. A unanimous US Supreme Court held that under exemptions to FOIA, the director of the CIA could withhold information to protect intelligence sources.

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  • Pell v. Procunier, 417 U.S. 817 (1974).

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    The US Supreme Court upheld federal prison rules to reporters’ access to specific individuals incarcerated in a state prison. Saxbe v. Washington Post, 417 U.S. 843 (1974) upheld similar rules in a federal prison.

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  • Press-Enterprise v. Riverside County Superior Court, 478 U.S. 1, 10 (1986).

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    This important decision on access to judicial information held that preliminary hearings in criminal cases should be presumptively open. This is important for news media, because perhaps 90 percent of all criminal cases are disposed of at the pretrial level.

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  • Richmond Newspapers v. Virginia, 448 U.S. 555. (1980).

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    Ruled that trials must be open to press and public under the First Amendment. This decision was the first time the Supreme Court held that access to newsworthy information is entitled to constitutional protection. This broadly stated principle was limited to courts by the facts of this legal dispute.

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Advertising and Commercial Speech

Advertising was an area of First Amendment expansion during the 20th century. The US Supreme Court’s landmark libel decision in New York Times v. Sullivan (1964) involved an advertisement, and the court declared for the first time that advertising discussing social or political concern has limited First Amendment protection. Hovland and Wolburg 2010 offers excellent information on advertising regulation, and Preston 1994 provides insights on issues of truth and falsity in advertising. It was not until Bigelow v. Virginia (1975) that the Supreme Court directly addressed commercial advertising in a decision. And in 1980, in the Central Hudson decision, the court came up with a four-part test to determine whether advertising had First Amendment protection.

  • Hovland, Roxanne, and Joyce M. Wolburg. 2010. Advertising, society and consumer culture. Armonk, NY: M. E. Sharpe.

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    This advertising textbook contains an excellent section on advertising regulation, including discussion of new textbooks on constitutional protection for commercial speech.

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  • Preston, Ivan. 1994. The tangled web they weave: Truth, falsity and advertisers. Madison: Univ. of Wisconsin Press.

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    An advertising professor known for his opposition to “puffery” (exaggeration so extreme that a reasonable person presumably won’t believe it) analyzes Federal Trade Commission efforts to control deceptive advertising.

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  • Bigelow v. Virginia, 421 U.S. 809 (1975).

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    To have First Amendment protection for an advertisement, the activity or product advertised must be legal.

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  • Central Hudson Gas & Electric Company v. Public Service Commission of New York 447 U.S. 557 (1980).

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    This decision generated the four-part “Central Hudson test” for whether advertising deserves First Amendment protection: (a) it must be for a lawful activity and (b) there must be a substantial government interest in regulation. If answers to both inquiries are “yes,” the last determinations are (c) whether the regulations advance a major government interest, and (d) whether the regulation is overly extensive.

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LAST MODIFIED: 02/23/2011

DOI: 10.1093/OBO/9780199756841-0076

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