Freedom of the Press/Jurisprudence
Under American jurisprudence, what permissible exceptions exist?
The Constitutional right to a free press is not absolute, and certain exceptions exist for this right as they do for other civil liberties such as free speech and free exercise. A series of landmark decisions dating back to the early Twentieth Century has gradually clarified the limits to freedom of the press, with exceptions for libel, obscenity, and imminent lawless action. Furthermore, the government’s ability to exercise prior restraint (i.e. preventing the publication of certain materials prior to their release) has been severely limited by the courts, but not entirely prohibited. In many instances, holdings for cases that do not specifically concern freedom of the press have been extended to impose new limitations (or privileges) for the press, by virtue of the content in question and the similarities that exist between the press and free speech.
Written material that is found to be libelous or defamatory is not protected by the First Amendment. The threshold for proving defamation can be strenuous, however, and especially difficult for public figures. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court took a major step in limiting the ability of government officials to sue for defamation. Following the publication of an advertisement in the New York Times that criticized the behavior of police officers in Montgomery, Alabama, the Montgomery police commissioner filed suit, alleging that the critical nature of the advertisement constituted defamation. Ruling against Montgomery, the Court asserted that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” are nevertheless protected by the First Amendment. Furthermore, the justices established the Actual Malice test, contending that public officials cannot bring libel cases unless they can prove that a defendant published defamatory material with “reckless disregard” for its accuracy (Justice Brennan, 1964).
The Actual Malice Test was later affirmed in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), in which plaintiff Daniel Connaughton filed a defamation claim against a local newspaper that ran negative articles about his campaign for local office in Hamilton, Ohio. Ruling for Connaughton, the Court affirmed Sullivan while asserting that the publication in question failed to verify its source material while ignoring obvious indications of its falsity (Justice Stevens, 1989). It should be noted, however, that this case represented an affirmation—rather than an extension—of the Sullivan test, as the justices largely limited themselves to criticizing material that displays a “reckless disregard for the truth” in the Connaughton decision. Finally, The Court expanded the Sullivan test to include both public officials and public figures in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Following a libel suit against Hustlers Magazine by conservative commentator and Moral Majority founder Jerry Falwell Sr., the Court extended the Sullivan standard to satirical speech, given the latters’ “prominent role in public and political debate” in spite of inaccuracies that are obvious to the reasonably-minded reader.
The criminalization of obscene material was largely derived from the Hicklin test in English Common Law, a premodern system of judicial decision-making that would later influence legal proceedings in the United States. This is evidenced by the contemporary legal definition of obscenity, which largely centers around speech or actions that are sexually explicit. The Supreme Court never established a firm view on obscenity, however, until its decision in Roth v. United States, 354 U.S. 476 (1957). The Court ruled against Samuel Roth, an author who was charged with violating a federal obscenity statute due to his dissemination of obscene books in public. In light of the sexually explicit nature of the books he sold, the justices asserted that speech that is “utterly without redeeming social importance” is not protected by the First Amendment, which was never meant to give “absolute protection for every utterance” to begin with (Justice Brennan, 1957).
Given the ambiguous interpretation of obscenity in Roth, the Court would later revisit the issue and craft a more succinct definition in Miller v. California, 413 U.S. 15 (1973). California businessman Marvin Miller disseminated explicit content through postal advertisements, and was subsequently arrested and charged under a state obscenity statute. Ruling for California, the Court reaffirmed that the distribution of obscene material without “serious literary, artistic, political, or scientific value” did not violate the Speech or Press Clauses of the First Amendment. In superseding Roth, the justices succeeded in creating a concrete definition for obscene material that can also be employed for issues pertaining to the Press Clause.
Written or spoken words that prompt some form of public disorder are not necessarily protected under American jurisprudence. The current threshold for proving the illegality of this conduct is exceptionally high, however, due to the Imminent Lawless Action test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). Prior to this decision, the Court adhered to the Clear and Present Danger test adopted in Schenck v. United States, 249 U.S. 47 (1919), and the Bad Tendency test adopted in Gitlow v. New York, 268 U.S. 652 (1925). In both cases, the justices took firm positions against the permissibility of views deemed as offensive by the U.S. Government while failing to articulate a test that did not amount to the targeting of certain unpopular viewpoints by the judiciary.
The Court successfully remedied this approach in Brandenburg by overturning the conviction of a Ku Klux Klan member in Hamilton County, Ohio, who was charged under a state criminal syndicalism statute following his incendiary remarks at a Klan rally. Ruling for Brandenburg, the justices asserted that speech or press material can only be criminalized if it is “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action”—a threshold that Brandenburg’s remarks, however incendiary and offensive they were, failed to clear (Per Curiam, 1969). The Imminent Lawless Action test was later affirmed in Hess v. Indiana (1973), in which an antiwar protestor was charged with disorderly conduct after exclaiming “we'll take the [explicative] street later” in response to a crackdown by campus police at Indiana University Bloomington. Ruling for Hess, the Court dismissed the aggressive nature of his comments towards law enforcement officers as “not directed to any person or group in particular,” given that the Brandenburg test required offending language to mention a target, time, or method for prospective activities (Per Curiam, 1973). Despite Hess and Brandenburg directly addressing spoken words rather than written material, it should be noted that each decision applies equally to the Speech and Press Clauses of the First Amendment, thereby making written threats of imminent lawless action and verbal threats equally illegal.
With few exceptions, prior restraint has largely been ruled unconstitutional in several landmark decisions that remain in force today. Prior to New York Times Co. v. United States, 403 U.S. 713 (1971), which is often regarded as the most notable case on this subject, the Court had already denied the constitutionality of prior restraint in Near v. Minnesota, 283 U.S. 697 (1931), in which the justices contended that the societal harms often caused by “miscreant purveyors of scandal” (In this case, a Minnesota Newspaper that regularly engaged in antisemitic commentary in violation of a state public nuisances law) do not provide a compelling reason for government actors to impose prior restraint on the publications in question, especially when no overarching national security implications are relevant to the issue at hand (Justice Hughes, 1931).
In retrospect, the establishment of exceptions for national security issues in Near likely gave hope to the Nixon Administration in its attempt to halt the publication of the Pentagon Papers, which culminated in New York Times Co. v. United States. Ruling for the New York Times, the justices acknowledged the “heavy burden of showing justification for the imposition of [prior restraint]” (Per Curiam, 1971), while arguing that issuing an injunction against various media outlets would represent a “flagrant, indefensible, and continuing violation of the First Amendment (Concurring Opinion by Justices Black and Douglas, 1971).” Following this decision, the imposition of prior restraint was largely relegated to several unique and (relatively) unpublicized issues (see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which allowed prior restraint for information gained in closed-door legal proceedings and for the conduct of a student-run news publication, respectively). Following New York Times, no significant and publicized enactment of prior restraint has earned judicial approval.
References
Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.
Justia. 2019. “Justia: Free Law & Legal Information for Lawyers, Students, Business and the Public.” https://www.justia.com/
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) https://supreme.justia.com/cases/federal/us/376/254/
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) https://supreme.justia.com/cases/federal/us/491/657/
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) https://supreme.justia.com/cases/federal/us/485/46/
Roth v. United States, 354 U.S. 476 (1957) https://supreme.justia.com/cases/federal/us/354/476/
Miller v. California, 413 U.S. 15 (1973)
https://supreme.justia.com/cases/federal/us/413/15/
Brandenburg v. Ohio, 395 U.S. 444 (1969) https://supreme.justia.com/cases/federal/us/395/444/
Schenck v. United States, 249 U.S. 47 (1919) https://supreme.justia.com/cases/federal/us/249/47/
Gitlow v. New York, 268 U.S. 652 (1925) https://supreme.justia.com/cases/federal/us/268/652/
Hess v. Indiana, 414 U.S. 105 (1973) https://supreme.justia.com/cases/federal/us/414/105/
New York Times Co. v. United States, 403 U.S. 713 (1971) https://supreme.justia.com/cases/federal/us/403/713/
Near v. Minnesota, 283 U.S. 697 (1931) https://supreme.justia.com/cases/federal/us/283/697/
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) https://supreme.justia.com/cases/federal/us/467/20/
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) https://supreme.justia.com/cases/federal/us/484/260/