First Amendment: freedom of the press

Question 1

Generally applicable restrictions

Answer 1

The press and the media do not have special privileges—e.g., a reporter cannot refuse to answer grand jury questions to protect a confidential source.

Question 2

Broadcast regulation

Answer 2

The government has a limited regulatory interest over broadcasters because of the limits of broadcast spectrum.

Question 3

Gag orders

Answer 3

Gag orders issued by courts are almost always struck down because they are rarely the least restrictive means of protecting the defendant’s right to a fair trial.

Question 4

Restrictions on publishing

Answer 4

Restrictions on the right of the media to publish about matters of public concern,

and the right of the public to receive such information,

may only be restricted by governmental action that is narrowly tailored to further a compelling government interest—i.e., strict scrutiny analysis applies.

Question 5

Illegally obtained facts

Answer 5

There is no special privilege allowing the press to invade the rights of others.

Members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news.

Question 6

Illegally obtained facts: third parties

Answer 6

The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party only if:

(1) the information involves a matter of public concern; and
(2) the publisher neither obtained it unlawfully nor knows who did.

Question 7

Lawfully obtained private facts

Answer 7

The First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.