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What is the “Freedom of Press” granted under the 1st Amendment?
The 1st Amendment states that, “Congress shall make no law … abridging the freedom of … the press.” Generally, it prohibits attempts by the government to curtail the freedom of expression through the public dissemination of information. More specifically, it prohibits any restraint prior to the publication of information, or “prior restraints”. Rather, protections of free press are commonly reduced after the publication of the information. That is, an individual or organization may be held liable subsequent to the publication of information, as the publication may run afoul of laws protecting the public (e.g., defamation).
- Example: The local news channel may report on any matters of public interest pursuant to the freedom of the press. Limiting the content that the media may cover is a prior restraint and would abridge this freedom. Holding the new channel liable for intentionally defaming a person is a limitation on freedom of press that is generally constitutional.
Discussion: How do you feel about the freedom of press? Should it be broader of more limited? Why? Why do you think the law distinguishes between prior restraints and restraints after the fact?
- Input on Discussion: Some might say that the freedom of press should be more narrow for reasons of protecting personal privacy, national security, etc. Others will argue that is should be broader as it is historically a medium for the publication of diverse viewpoints. Some might say that there should be a middle ground, with specific limitations. For example, if the government specifies information as sensitive, secret or the relevance of information protecting the national interest. Much of the debate centers on whether there should be “prior restraints” that prohibit speech or whether there should be restraints after the fact that subject the media or press to liability if they go beyond what is permissible.
Practice Question: Ernie has an Internet blog covering political issues that is becoming increasingly popular. Ernie’s state legislature passes a law that limits the ability to cover special interest group spending on lobbying activity. If Ernie challenges the law in court, what do you think will be the outcome?
- The freedom of press prohibits any restraint prior to the publication of information, or “prior restraints”. Such freedom implies the absence of interference from an overreaching state. Its preservation may be sought through constitutional or other legal protections. In Ernie’s case, this is a prior restraint that would have to pass the high standard of constitutional review – strict scrutiny. It is difficult to imagine a situation where this law would satisfy a compelling government interest and be narrowly tailored as the only manner of achieving that interest or objective.
Sadurski, Wojciech, Freedom of the Press and General Theory of Freedom of Speech (September 2011). Sydney Law School Research Paper No. 11/57. Available at SSRN: https://ssrn.com/abstract=1923486 or http://dx.doi.org/10.2139/ssrn.1923486
Bezanson, Randall P., Whither Freedom of the Press? (April 3, 2012). 97 Iowa L. Rev. 1259, 2012; U Iowa Legal Studies Research Paper No. 12-01. Available at SSRN: https://ssrn.com/abstract=1982616
Urquhart, Lachlan, ‘Regulation of Privacy and Freedom of the Press from 2004-2017: From Campbell to Fake News ‘ (January 23, 2016). in L Edwards Law, Policy and the Internet (Hart Publishing: Forthcoming). Available at SSRN: https://ssrn.com/abstract=2721044 or http://dx.doi.org/10.2139/ssrn.2721044
Eastman, John C., Does the First Amendment’s Freedom of the Press Clause Place the Institutional Media Above the Law of Classified Secrets? (May 26, 2006). Available at SSRN: https://ssrn.com/abstract=905167 or http://dx.doi.org/10.2139/ssrn.905167
Lee, Edward, Freedom of the Press 2.0 (August 2007). Ohio State Public Law Working Paper No. 97; Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 65. Available at SSRN: https://ssrn.com/abstract=1008877 or http://dx.doi.org/10.2139/ssrn.1008877
Smith, A. T. H., Freedom of the Press and Prior Restraint (2005). (2005) 64 CLJ at 4. Available at SSRN: https://ssrn.com/abstract=2390460