4- First Amendment & Freedom of the Press Flashcards
Freedom of the Press
As with other first amendment freedoms, freedom of the press is considered essential to a liberal democracy and in American society is nearly absolute, with a few restrictions.
“Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter”.Thomas Jefferson
People v. Croswell(1804)
Harry Croswell was convicted of libel for printing a story critical of President Thomas Jefferson in his New York newspaper. Alexander Hamilton represented Croswell on appeal and argued that truth should be a defense for libel.
Croswell’s conviction was upheld, but the case led New York State to change its law to permit truth as a defense against libel charges. Though not a Supreme Court case, this is a landmark freedom of the press case
Garrison v. Louisiana(1964)
Louisiana District Attorney Garrison, during a dispute with certain state court judges of his parish, accused them at a press conference of laziness and inefficiency and of hampering his efforts to enforce the vice laws.
A state court convicted him of violating the Louisiana Criminal Defamation Statute, which, in the context of criticism of official conduct, includes punishment for true statements made with “actual malice”.
The state Supreme Court affirmed the conviction, holding that the statute did not unconstitutionally abridge appellant’s rights of free expression.
The Constitution limits state power to impose sanctions for criticism of the official conduct of public officials, in criminal cases as in civil cases, to false statements concerning official conduct made with knowledge of their falsity or with reckless disregard of whether they were false or not.
True statements made with “actual malice” are protected.
New York Times v. Sullivan(1964)
During the Civil Rights movement of the 1960s, theNew York Timespublished an ad for donations to defend Martin Luther King, Jr., from perjury charges in Alabama. The ad contained several minor factual inaccuracies.
The Montgomery, Alabama Public Safety Commissioner, L.B. Sullivan, felt that criticism of his subordinates reflected on him, even though he was not mentioned in the ad.
Sullivan sent a written request to theTimesto publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.
When theTimesrefused, Sullivan filed a libel action against theTimes. A jury in state court awarded him $500,000 in damages. The state supreme court of Alabama affirmed and theTimesappealed.
Did Alabama’s libel law unconstitutionally infringe on the First Amendment’s freedom of speech and freedom of press protections?
Yes. To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.
In a unanimous opinion authored by Justice Brennan, the Court ruled for theTimes.
When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of, or reckless disregard for, its falsity.
The constitutional guarantees require, we think, a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
The Sullivan Standard, “actual malice”, is very hard to prove.
Pentagon Papers Case
New York Times v. United States(1971)
In what became known as the “Pentagon Papers Case,” the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam.
The President argued that prior restraint was necessary to protect national security.
Did the Nixon administration’s efforts to prevent the publication of what it termed “classified information” violate the First Amendment?
Yes. The Court held that the government did not overcome the “heavy presumption against” prior restraint of the press in this case.
Justices Black and Douglas argued that the vague word “security” should not be used “to abrogate the fundamental law embodied in the First Amendment.”
Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.
Challenges to Freedom of the Press
Unlike religious freedoms which have benefited from increased protections in contemporary American society (RFRA), Freedom of the press appears to have been somewhat curtailed in recent years.
Some restraints on traditional press freedoms have come from unexpected places. President Obama greatly reduced investigative journalists’ access to government documents under the Freedom of Information Act (FOIA).
The reduced protection provided to journalists under the Obama administration were followed by even more open attacks by the Trump administration, against the press in general, and against WikiLeaks founder Julien Assange in particular, who was charged with espionage under the 1917 Espionage Act.
While Donald Trump made the expression “Fake News” famous, applying it to all news organizations critical of him, it was Hillary Clinton who first used the term to describe the spread of disinformation through the manipulation of algorithms on social media sites such as Facebook and Twitter.
Freedom of the Press in the Age of the Internet.
With the decline of Traditional news media, and the rise of a less centralized information landscape, the first amendment guarantee of press freedom faces new challenges.
Social media sites like Facebook and Twitter exist in a gray zone between publishers (responsible for the content on their sites) and platforms which (like public utilities such as telephone networks) are not.
Section 230 of the Communications Decency Act states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”
Gonzales v Google
Freedom of the Press in France and the US
The differences between how freedom of the press is protected in the US and France is quite similar to how freedom of speech protected.
As a general rule it is much harder to prevent the publication of information (prior restraint) or to punish someone for lible or defamation in the US than it is in France.
