First Amendment – Freedom of the Press

1735Truth Is A Defense Against Libel Charge

New York printer John Peter Zenger is tried on charges of seditious libel for publishing criticism of the royal governor. English law – asserting that the greater the truth, the greater the libel – prohibits any published criticism of the government that would incite public dissatisfaction with it. Zenger’s lawyer, Andrew Hamilton, convinces the jury that Zenger should be acquitted because the articles were, in fact, true, and that New York libel law should not be the same as English law. The Zenger case is a landmark in the development of protection of freedom of speech and the press.

1787Federalist Papers’ Publication Starts

The first of 85 essays written under the pen name Publius by Alexander Hamilton, James Madison and John Jay begin to appear in the New York Independent Journal. The essays, called the Federalist Papers, support ratification of the Constitution approved by the Constitutional Convention on Sept. 17, 1787. In Federalist Paper No. 84, Hamilton discusses “liberty of the press.”

1791First Amendment Is Ratified

The First Amendment is ratified when Virginia becomes the 11th state to approve the first 10 amendments to the Constitution, known as the Bill of Rights. The amendment, drafted primarily by James Madison, guarantees basic freedoms for citizens: freedom of speech, press, religion, assembly and petition.

1798Alien And Sedition Acts Signed Into Law

While the nation’s leaders believe an outspoken press was justified during the war for independence, they take a different view when they are in power. The Federalist-controlled Congress passes the Alien and Sedition Acts. Aimed at quashing criticism of Federalists, the Sedition Act makes it illegal for anyone to express “any false, scandalous and malicious writing” against Congress or the president.

The United States is in an undeclared war with France, and Federalists say the law is necessary to protect the nation from attacks and to protect the government from false and malicious words. Republicans argue for a free flow of information and the right to publicly examine officials’ conduct.

1864Lincoln Orders Two Newspapers Shut

President Abraham Lincoln orders Union Gen. John Dix to stop publication of the New York Journal of Commerce and the New York World after they publish a forged presidential proclamation calling for another military draft. The editors also are arrested. After the authors of the forgery are arrested, the newspapers are allowed to resume publication.

1907Court Refuses To Review Publisher’s Conviction

In Patterson v. Colorado, the U.S. Supreme Court says it does not have jurisdiction to review the criminal contempt conviction of U.S. Sen. Thomas Patterson, who published articles and a cartoon critical of the state Supreme Court. The Court says that the rights of free speech and free press protect only against prior restraint and do not prevent “subsequent punishment.”

1918Sedition Act Of 1918 Punishes Critics Of WWI

An amendment to the Espionage Act of 1917, the Sedition Act is passed by Congress. It goes much further than its predecessor, imposing severe criminal penalties on all forms of expression that are critical of the government, its symbols, or its mobilization of resources for World War I. Ultimately, about 900 people will be convicted under the law. Hundreds of noncitizens will be deported without a trial; 249 of them, including anarchist Emma Goldman, will be sent to the Soviet Union.

1925Court: First Amendment Applies To States’ Laws

In Gitlow v. New York, the U.S. Supreme Court concludes that the free speech clause of the First Amendment applies not just to laws passed by Congress, but also to those passed by the states.

1931Prior Restraint Ruled Unconstitutional

Near v. Minnesota is the first U.S. Supreme Court decision to invoke the First Amendment’s press clause. A Minnesota law prohibited the publication of “malicious, scandalous, and defamatory” newspapers. It was aimed at the Saturday Press, which had run a series of articles about corrupt practices by local politicians and business leaders. The justices rule that prior restraints against publication violate the First Amendment, meaning that once the press possesses information that it deems newsworthy, the government can seldom prevent its publication. The Court also says the protection is not absolute, suggesting that information during wartime or obscenity or incitement to acts of violence may be restricted.

1936Court: Newspaper Circulation Tax Unconstitutional

In Grosjean v. American Press Co., the U.S. Supreme Court decides that governments may not impose taxes on a newspaper’s circulation. The Court says such a tax is unconstitutional because “it is seen to be a deliberate and calculated device … to limit the circulation of information to which the public is entitled.”

1952Justices Uphold Group Libel Law

In Beauharnais v. Illinois, the U.S. Supreme Court upholds the conviction of a white supremacist for passing out leaflets that characterized African Americans as dangerous criminals. The “group libel” law under which Joseph Beauharnais was prosecuted makes it a crime to make false statements about people of a particular “race, color, creed or religion” for no other reason than to harm that group. The Court rules that libel against groups, like libel against individuals, has no place in the marketplace of ideas.

1964Court Establishes ‘Actual Malice’ Standard

In New York Times Co. v. Sullivan, the U.S. Supreme Court establishes the “actual malice” standard when it reverses a civil libel judgment against the New York Times. The newspaper was sued for libel by Montgomery, Ala.’s police commissioner after it published a full-page ad that criticized anti-civil rights activities in Montgomery. The court rules that debate about public issues and officials is central to the First Amendment. Consequently, public officials cannot sue for libel unless they prove that a statement was made with “actual malice,” meaning it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

1969Justices Uphold FCC’s Fairness Doctrine

Because of the limits of the broadcast spectrum, the U.S. Supreme Court holds that the government may require radio and TV broadcasters to present balanced discussions of public issues on the airwaves. In Red Lion Broadcasting v. FCC, the Court upholds the Federal Communications Commission’s fairness doctrine and “personal attack” rule – the right of a person criticized on a broadcast station to respond to the criticism over the same airwaves – saying they do not violate the right to free speech.

1971Newspapers Win Pentagon Papers Case

The New York Times and the Washington Post obtain secret Defense Department documents that detail U.S. involvement in Vietnam in the years leading up to the Vietnam War. Citing national security, the U.S. government gets temporary restraining orders to halt publication of the documents, known as the Pentagon Papers. But, acting with unusual haste, the U.S. Supreme Court finds in New York Times v. United States that prior restraint on the documents’ publication violates the First Amendment. National security concerns are too speculative to overcome the “heavy presumption” in favor of the First Amendment’s guarantee of freedom of the press, the Court says.

1972Court: No Reporter’s Privilege Before Grand Juries

Branzburg v. Hayes is a landmark decision in which the U.S. Supreme Court rejects First Amendment protection for reporters called before a grand jury to reveal confidential information or sources. Reporters argued that if they were forced to identify their sources, their informants would be reluctant to provide information in the future. The Court decides reporters are obliged to cooperate with grand juries just as average citizens are. The justices do allow a small exception for grand jury investigations that are not conducted or initiated in good faith.

1974Equal Space Law For Candidates Struck Down

In Miami Herald v. Tornillo, the U.S. Supreme Court strikes down a Florida law requiring newspapers to give equal space to candidates running for office. The justices say a candidate is not entitled to equal space to reply to a newspaper’s attack. Compulsory publication, the court says, intrudes on the right of newspaper editors to decide what they want to publish.

1975Court Allows Publication Of Sex-Crime Victim’s Name

In Cox Broadcasting Corp. v. Cohn, the U.S. Supreme Court rules that a state cannot prevent a newspaper from publishing the name of a rape victim in a criminal case when the name already was included in a court document available to the public.

1976Justices Say Gag Orders On Press Are Prior Restraint

Nebraska Press Association v. Stuart pits the right of a free press against the right to a fair trial. In a multiple-murder case in Nebraska, a local judge imposed a gag order to prevent news coverage that might make it difficult to seat an impartial jury. However, the U.S. Supreme Court rules that judges cannot impose gag orders on reporters covering a criminal trial because they are a form of prior restraint. However, the justices also note that there may be cases in which a gag order might be justified to protect the defendant’s rights.

1977Court Allows Publication Of Juvenile’s Identity

In Oklahoma Publishing Company v. District Court, the U.S. Supreme Court finds that when a newspaper obtains the name and photograph of a juvenile involved in a juvenile court proceeding, it is unconstitutional to prevent publication of the information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling will be made by the court two years later, in Smith v. Daily Mail Publishing Company, when the Court finds that a newspaper’s First Amendment right takes precedence over a juvenile’s right to anonymity.

1977Publication Of Juvenile’s Name, Photograph Is Upheld

In the case Oklahoma Publishing Company v. District Court, the U.S. Supreme Court finds that when a newspaper obtains a name and photograph of a juvenile involved in a juvenile court proceeding, it is an unconstitutional restriction on the press to prevent publication of that information, even though the juvenile has a right to confidentiality in such proceedings. A similar ruling is made two years later, in Smith v. Daily Mail Publishing Company, when the Court finds that a newspaper’s First Amendment right must take precedence over a juvenile’s right to anonymity.

1978Justices Allow Search Warrants For Newsrooms

In Zurcher v. Stanford Daily, the U.S. Supreme Court finds that the First Amendment does not protect the press and its newsrooms from search warrants. Police in Palo Alto, Calif., had obtained a warrant to search the newsroom of the student newspaper at Stanford University. Police believed the newspaper had photos of a violent clash between protesters and police and were trying to identify the assailants.

1979Court: No Shield On Editorial Process Inquiries

In Herbert v. Lando, the U.S. Supreme Court decides that the press clause in the First Amendment does not include a privilege that would empower a journalist to decline to testify about editorial decision-making in civil discovery. The Court says that protecting the editorial process from inquiry would add to the already substantial burden of proving actual malice.

1979Court Allows Publication Of Juvenile Offender’s Name

In Smith v. Daily Publishing Co., the U.S. Supreme Court decides that a newspaper cannot be liable for publishing the name of a juvenile offender in violation of a West Virginia law declaring such information to be private. The Court writes: “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

1979Right To Public Trial Is To Protect Defendant

In Gannett Co. v. DePasquale, the U.S. Supreme Court denies a claim by members of the press and public who were barred from a pretrial hearing in a criminal case. The Court rules that extensive pretrial publicity threatened the defendant’s ability to get a fair trial. The Court holds that the Sixth Amendment right to a public trial is first and foremost for the benefit of the defendant and does not give the press or public an absolute right to attend criminal trials.

1980Justices Uphold Right To Attend Criminal Trials

In Richmond Newspapers v. Virginia, the U.S. Supreme Court asserts that the public and the press have a First Amendment right to observe criminal trials. The justices say this right is not absolute, but can be restricted only if the judge decides there are no other means to protect the defendant’s right to a fair trial. The other means include a change of venue, jury sequestration, extensive questioning of potential jurors, trial postponement, emphatic jury instructions, and gag orders on trial participants. The Court says open trials help maintain public confidence in the justice system. In 1984, the Court extends its ruling to jury selection. In Press-Enterprise Co. v. Superior Court of California, the justices rule that the right to attend criminal trials includes the right to attend jury selection.

1982Court: Press Has Right To Cover All Trials

Globe Newspaper Co. v. Superior Court establishes broad rights of the press to cover trials of all types. In 1979, three teenage girls accused a man of rape. Massachusetts law required that sex-crime trials involving victims 18 and younger be closed. The Globe Newspaper Co. challenged the law, and after a long legal battle, the case reached the U.S. Supreme Court. By that time, the trial was over, but the justices review the case since the issue will likely arise again. The court strikes down the law as too broad and says the circumstances when a courtroom can be closed are limited.

1983Media Access Limited In Grenada, Panama Invasions

Media access is banned for the first two days when the United States invades Grenada, its first military action since the Vietnam War. Journalists are kept 170 miles away on the island of Barbados. In response to complaints afterward, the Department of Defense National Media Pool is created. The Pentagon agrees to take in this group with the first wave of troops in future military actions. But in the 1989 invasion of Panama, the pool of reporters again is not allowed to cover early fighting.

1988Court Allows Censorship Of School Publications

In Hazelwood School District v. Kuhlmeier, the U.S. Supreme Court rules that public school administrators can censor speech by students in publications (or activities) that are funded by the school – such as a yearbook, newspaper, play, or art exhibit – if they have a valid educational reason for doing so.

1988Parody Of Public Figures Ruled Constitutional

In Hustler Magazine v. Falwell, the U.S. Supreme Court applies the “actual malice” standard, saying the First Amendment protects the right to parody public figures, even if the parodies are “outrageous” or inflict severe emotional distress. The case arose from a parody of Campari liqueur ads in which celebrities spoke about their “first time” drinking the liqueur. Jerry Falwell – a well-known conservative minister and political commentator – was the subject of such a parody in Hustler, a sexually explicit magazine. The Court rules that public figures may not be awarded damages for the intentional infliction of emotional distress without showing that false factual statements were made with “actual malice.”

1990Court Decides Opinion Not Always Protected

In Milkovich v. Lorain Journal Co., the U.S. Supreme Court decides that the First Amendment does not absolutely protect expressions of opinion from being found libelous. The Court makes a distinction between pure opinion and opinion that implies “an assertion of objective fact” that a plaintiff can prove is false. Chief Justice William H. Rehnquist writes that “loose, figurative or hyperbolic language” is protected because it would “negate the impression” that the writer is making serious accusations based on fact.

1991Court: Newspapers Can Be Sued For Revealing Source

Cohen v. Cowles Media Co. establishes that newspapers are subject to liability for breach of contract claims when the identity of a confidential source is revealed. During a Minnesota election, political activist Dan Cohen gave reporters court documents about a candidate after they promised him anonymity. In subsequent articles, Cohen was identified as the source of the documents and fired. He sued the two newspapers, alleging fraudulent misrepresentation and breach of contract. The Court rejects the newspapers’ claim to the right to publish Cohen’s name, saying that in this context, the First Amendment offers no special protection.

1991Media Coverage Limited In Gulf War

The Pentagon imposes rules for media coverage of the war in the Persian Gulf, citing the possibility that some news – including information on downed aircrafts, specific troop numbers, and names of operations – may endanger lives or jeopardize U.S. military strategy. Nine news organizations file a lawsuit questioning the constitutionality of limiting media access to the battleground. But a court rules the question moot when the war ends before the case is decided.

2001Disclosure Of Illegally Intercepted Communications Protected

In the joined cases of United States v. Vopper and Bartnicki v. Vopper, the U.S. Supreme Court rules that the media cannot be held liable for publishing or broadcasting the illegally intercepted contents of telephone calls or other electronic communications as long as the information is of “public concern” and the media did not participate in the illegal interception.