Free Press in the United States

Free Press/Fair Trial

According to the Encyclopedia of the American Constitution, although press coverage has challenged the fairness and dignity of criminal proceedings throughout American history, intensive consideration of free press/fair trial issues by the Supreme Court has mainly been a product of recent decades.

American Roots of a Free Press

Governments have always exercised censorship, the official control of free expression. But with the invention of movable type by Johann Gutenberg in the fifteenth century came a rapid increase in printed materials. Now, kings and churches devised lists of banned books and pamphlets. In England, Henry VIII required that books be licensed before they could be published, and his daughter Elizabeth I ordered that all written works must be submitted to official censors for prior approval. The press was also licensed in England’s colonies in North America. One of the most contentious doctrines was seditious libel, under which a printer could be punished for publishing criticism of the government. Such criticism, said the crown, led to revolution and social unrest. Truth was no defense, because accurate criticism would provoke the greatest upheaval.

But in 1735, the trial of John Peter Zenger for seditious libel planted the first roots of a free press in America. Zenger was a German immigrant whose English was limited. The printer of the New York Weekly Journal, Zenger served as the front for several wealthy lawyers who wrote anonymous articles criticizing the royal governor. When Zenger was jailed for seditious libel, his wife, Anna, kept the newspaper going. Although threatened with a death sentence, Zenger refused to reveal the names of 137 his writers. Zenger’s attorney argued that truth should be a defense for seditious libel, and an American jury refused to convict Zenger.

Zenger’s acquittal brought an end to most prosecutions for seditious libel in America. However, licensing continued under the colonial legislatures. After the Revolutionary War, Virginia was the first state to include freedom of the press in its constitution. During the ratification debates on the Constitution, more states recommended including freedom of the press than free speech in a proposed Bill of Rights. Indeed, Thomas Jefferson wrote: “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.”

Prior Restraint

The bedrock principle of a free press is that, absent great exigencies, the government may not censor a work before it is published-a practice known as prior restraint. However, the government can punish authors or editors after publication. In Nearv. Minnesota (1931), the Supreme Court incorporated freedom of the press to apply to the states, holding that a Minnesota law authorizing prior restraints violated the First Amendment. The Court held that merely because “miscreant purveyors of scandal” could abuse freedom of the press did not lessen the prohibitions on prior restraint. The Court did say that prior restraint might be justified in cases of national security, such as preventing the publication of troop movements during wartime.

That standard was at issue in New York Times v. United States (1971), which involved the publication of the Pentagon Papers, a secret analysis of the causes of the Vietnam War. A former Pentagon employee, Daniel Ellsberg, illegally leaked the documents to the New York Times and the Washington Post, which both published excerpts. A federal court issued an injunction prohibiting further publication, the first time in American history that the U.S. government had obtained a prior restraint. But the Supreme Court ruled that the government had not proven that the Pentagon Papers would endanger national security.

The burden against prior restraint is so great that the Supreme Court has held that it is not overcome even by a defendant’s right to a fair trial. In Nebraska Press Association v. Stuart (1976), the Court struck down a judge’s gag order barring the media from covering certain details of a murder trial.

Instead, the Court held that judges must take other steps to guarantee a fair trial despite pretrial publicity, such as sequestering the jury or changing the venue of the trial.

(Another way that freedom of the press can be limited is through laws that make libel easy to prove. Fearing lawsuits, the press censors itself. In his book about the Sullivan case, New York Times columnist Anthony Lewis noted that by 1964 public officials in the South had filed libel lawsuits of almost $300 million against the media. “The aim was to discourage not false but true accounts of life under a system of white supremacy,” wrote Lewis).

In New York Times v. Sullivan (1964), the Supreme Court set a new standard that made libel very difficult to prove for public officials. Civil rights leaders had purchased an advertisement in the New York Times charging that the police in Montgomery, Alabama, abused African Americans. Police commissioner L. B. Sullivan sued the Times for libel because several details in the ad were incorrect, and he won the largest libel judgment ever awarded in Alabama.

The Supreme Court unanimously overturned the Alabama jury’s verdict. The Court said that in order to protect robust public debate, criticism of public officials deserved a wide berth. Therefore, mere errors of fact, or even carelessness in publishing the errors, was not enough to justify a libel suit by a public official. Instead, said the Court, the official must prove that a newspaper printed the error with actual malice, meaning “with knowledge that it was false or with reckless disregard of whether it was false or not.” The Supreme Court later applied this standard for libel to public figures as well as public officials.

Nonprint Media

Although freedom of the press is not limited to the printed word, other forms of media do not receive as much protection under the First Amendment. The Supreme Court has ruled that broadcast media, which use the public airwaves, can be regulated by the federal government in ways that newspapers cannot be. But improved technology and expanded channels decreased the government’s regulatory role. Cable television, which uses private wires instead of public airwaves, is a hybrid under the first Amendment; it receives more protection than broadcast media but less than print media. In 1997, the Supreme Court upheld a “must-carry” law requiring cable companies to reserve certain channels for network broadcast stations at no cost.