Freedom of the Press

I

Introduction

Freedom of the Press, immunity of the communications media—including newspapers, books, magazines, radio, and television—from government control or censorship. Freedom of the press is regarded as fundamental to individual rights. Without free media, a free society and democratic self-government would not be possible. By recognizing the right to dissent, democratic governments encourage peaceful and orderly social and political change.

When the first Congress of the United States met in 1789, its main order of business was the adoption of the Bill of Rights, the first ten amendments to the Constitution of the United States. The 1st Amendment provides that “Congress shall make no law…abridging the freedom of speech, or the press” (see Speech, Freedom of). Although intended as a guarantee limiting the federal government, its reach was extended by the 14th Amendment (1868) to protect the press from abridgment by the states. In its constitutional sense, the term press has been interpreted by the U.S. Supreme Court to encompass not only newspapers, but also books, magazines, and other printed matter as well as motion pictures. (Other broadcasting media, regulated by the Federal Communications Commission since 1934, are moving toward 1st Amendment parity with the print media.)

II

Limitations

Freedom of the press, however, is not absolute. The principle has long been established that the press may not be used in circumstances that would create a “clear and present danger” of bringing about serious consequences to some significant interest that the government has a right or duty to protect. For example, during World War I (1914-1918), restrictions were placed on the direct advocacy of treason and on criticism of the government, conscription, or the American flag.

Another important limit on the free press is the law of libel, involving the defamation of a person, false accusations, or exposure of someone to hatred, ridicule, or pecuniary loss. In 1964 the Supreme Court of the United States weighed the libel law against the interests protected by the 1st Amendment. The Court held that a public figure who sues a newspaper for libel can recover damages only if the person can prove that the statement printed was made with actual malice, that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” Subsequent court cases have extended this principle for the further protection of a free press.

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Until about the mid-20th century, the law of obscenity was also a substantial limitation on freedom of the press. Today this exception, like the law of libel, has been narrowed so as to exclude from the constitutional guarantee only so-called hard-core pornography.

III

Protection of the Press

In the 18th century the British Parliament imposed a tax on printed matter. Since it increased the cost of newspapers, it became known as a tax on knowledge. In a 1936 case, the U.S. Supreme Court held that the 1st Amendment will not tolerate any “taxes on knowledge.”

During the era of unrest caused by U.S. participation in the Vietnam War, prosecutors sometimes subpoenaed journalist's notes, or publications' files, and government agents made unannounced newsroom searches. Under the Privacy Protection Act of 1980, however, law-enforcement officers seeking evidence of crime must afford reporters notice and an opportunity to contest the subpoena in court.

Occasionally the courts have tried to compel journalists to disclose their sources of information. Reporters have gone to jail, charged with contempt of court, for refusing to comply. Many states have enacted so-called shield laws giving journalists the right to refuse to disclose identities of confidential sources. Under many laws, however, journalists are still required to disclose this information.

In many countries freedom of the press remains limited. The primary function of the press in totalitarian countries has been to promote the aims of the government. By the late 1980s, however, a few Communist governments were allowing the press some measure of freedom to report national and international news.

See also Book Trade; Broadcasting, Radio and Television; Civil Rights and Civil Liberties; Newspapers.