Freedom of the Press/Legal Codification/US exceptions
Are there any exceptions in American law to this right?
Given the fuzzy line between freedom of speech and freedom of the press (Freedom of Expression, n.d.), restrictions or exceptions towards speech will impact the press and vice versa. With this is mind, there are two main exceptions in the history of United States law to the right of freedom of the press: the Espionage Act of 1917, and the Sedition Act of 1918.
The Espionage Act of 1917 stated that an individual who shares a document or information that “…could be used to the injury of the United States…shall be fined…or imprisoned…” (18 U.S. Code § 793 - Gathering, Transmitting or Losing Defense Information, n.d.). Similar to the Alien and Sedition Acts, the Espionage Act was proposed in the context of war where President Woodrow Wilson himself pleaded for greater restriction to expression and punishment towards individuals that opposed the United States government in his State of the Union address: “Such creatures of passion, disloyalty, and anarchy must be crushed out” (Handout B, n.d.).
The Espionage Act was put to the test in the case Schenck v. United States (1919) . Charles Schenck and Elizabeth Baer were convicted for violating the act by distributing leaflets that claimed the draft unconstitutional and was akin to “involuntary servitude” (Schenck v. United States, n.d.). The conviction was upheld by the Supreme Court due to Schenck and Baer’s actions providing a “clear and present danger” which the government has the constitutional ability to block (Asp, n.d.).
A similar decision occurred with Debs v. United States (1919) . Eugene V. Debs, a popular socialist politician, was sentenced to ten years in prison for condemning the involvement of the United States in the first World War. Debs claimed protection under the First Amendment, but it was not accepted as Debs’ statements were considered, again, a clear and present danger due to them potentially causing resentment towards the draft (Dow, n.d.).
Many were indicted through the Espionage Act, though as time passed, there was controversy over its small scope and high leniency as the first World War continued its drastic impact on the United States. The case that tipped the balance towards a stronger Espionage Act was an indictment to Ves Hall. Hall was a rancher in rural Montana who expressed plans to desert if he were drafted, that Germany would win the war, and that Woodrow Wilson was a corrupt president (Galison, 2010) . Hall’s prosecution had broad support from the press and the public. However, Hall was acquitted in the district court as the judge at the time decided that as Hall was in a remote village of 60 people and was miles and miles away from any military presence, and therefore his words did not present any threat to the United States: “…[Hall’s] verbal assault was so distant from its target that there simply was no plausible case to be made for interference with military operations or recruitment” (Ibid.). After Hall’s acquittal, in addition to other acquittals or lenient sentences, desire from American nationalists and supporters from the war increased for an expansion of the Espionage Act to be able to effectively punish and deter disloyalty (Ibid.; Gutfeld, 1968, pg. 169). An amendment was added to the Espionage Act, the Sedition Act of 1918, which rather than merely prohibiting the sharing of a document that could jeopardize American security, instead makes any “disloyal, profane, scurrilous, or abusive language” expressions towards the government, the Constitution, the military, or the flag a federal offense (The Espionage and Sedition Acts, 2021) .
Eventually, the early 20th century war-era acts were reversed by the 1964 case Brandenburg v. Ohio. In the case, Clarence Brandenburg, a member of the Ku Klux Klan, was having a meeting where he planned a demonstration on Washington, D.C. Brandenburg was convicted to ten years in prison for advocating crime and terrorism (Walker, n.d.). When the case went to the Supreme Court, the Court unanimously decided to overturn Brandenburg’s conviction (Ibid.). The Court stated: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, 1969) . As a result, this gave political dissenters a greater ability to express their beliefs despite whatever position towards the United States Government they may have.
Even with Brandenburg’s “imminent lawless action” rule did not completely dissolve the Espionage Act, however. As the Cold War became a more prominent conflict in the 20th century, the Espionage Act was used to justify convictions of American citizens who shared sensitive information about the United States’ research into atomic bombs (DeWitt, 2016, pg. 124). Henceforth, citizens who had access to sensitive information would have their speech limited, in order to protect national security, and it is this interpretation of the Espionage Act which the United States government uses to justify convictions towards “whistleblowers”—Edward Snowden and Chelsea Manning for example—in the present day (DeWitt, 2016, pg. 127; Greenwald, 2013; Volokh, 2018) .
Other exceptions to freedom of the press exist. One example is that of obscenity. In 1973, the case Miller v. California, publisher Marvin Miller was prosecuted for mailing advertisements considered obscene (Hudson, n.d.). The Supreme Court acquitted Miller of the charge and established a three-part test—the Miller test— to decide whether an expression is obscene or not: “Whether the average person…would find the work…appeals to the prurient interest,…whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,…and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Marvin MILLER, Appellant, v. State of CALIFORNIA., 1973) .
Defamation is another exception, of which the 1964 case New York Times v. Sullivan is an example. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.). The Supreme Court reversed the motions of the previous courts that defended Sullivan and Justice William J. Brennan Jr. Opined for the majority: “[We] consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open…” allowing even for “…vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials” (Hudson Jr, n.d.). With this defense, however, limits could be enforced if the expression is made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v. Sullivan, 376 U.S. 254, 1964) .
Lastly, there is a limit as to what extent the press can protect their reporters’ confidentiality, and this was established in the 1972 case Branzburg v. Hayes (Tom McInnis, n.d.). Reporter Paul Branzburg published a story about drug use and the Black Panthers. Branzburg was asked to testify on the illegal activity and Branzburg refused due to the confidentiality he promised his sources. The Supreme Court decided that, as the information was relevant to a criminal investigation, reporters are obligated to testify on that information (Ibid.). The Court states: “The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege…” (Branzburg v. Hayes, 1972) .