Right/Freedom of the Press/Conflicts with other Rights

Freedom of the Press

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

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The first right that is critical to the exercise of freedom of the press is the right to free speech and expression. The Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations 1948) . Without the right to free speech and expression, the press would be very limited. This leads to another right which is critical to the exercise of freedom of the press which is the right to criticize the government. Before the American Revolution, the government did not allow freedom of the press because they were fearful of the spread of unfavorable information. The first American newspaper was published in Boston in 1690 called, Publick Occurrences, Both Foreign and Domestick. The British government banned this publication because it was critical (Kahane 1976, 203). Years later in 1773, Hamilton helped to establish the principle that libel could not be punished unless it was false information. This meant that critiques of the government could be published, so long as that information was true (Kahane 1976, 205). Hence, the ability to criticize the government became recognized as necessary for the realization of freedom of the press.

A similar principle was later upheld within the case of New York Times Company vs. Sullivan in 1964 (New York Times Company v. Sullivan). In 1960, the New York Times printed a newspaper with a civil-rights fundraising editorial advertisement titled, “Heed Their Rising Voices.” The advertisement was opposed to the way Alabama law enforcement had treated Rev. Martin Luther King Jr.. L.B. Sullivan filed a lawsuit against the New York Times on the basis that there were mistakes in the newspaper that called his reputation into question because he was a supervisor of the Alabama local police. Originally, a jury awarded him $500,000 in damages. However, the Supreme Court later reversed this decision and dismissed the damage award. The Court established the “actual malice” test which made it so public officials could only receive damages against libel in cases where the libel was stated “with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Company v. Sullivan). In the case of New York Times Company vs. Sullivan, the publication did not meet the standards of the actual malice test. According to Justice William J. Brennan Jr. and the majority, “debate on public issues should be uninhibited, robust and wide-open” (New York Times Company v. Sullivan). The majority implied that mistakes within publication would happen within any democratic society, and that debate and criticism of government affairs would be necessary for a truly free press.

Another right that is critical to the exercise of freedom of the press is the right of the public to receive information. Between 1964 and 1968, the modern conception of freedom of the press changed. Free press began to not only mean the ability to publish as one pleases, but also that citizens have a right to receive information about the government in order to promote democracy. This would act as a check on the power of officials. With this, the extent to which freedom of the press could be protected expanded (Coyle 2017) . In 1996, the Federal Freedom of Information Act granted citizens the right to access many federal records. There are exceptions and limitations to this access, such as for privacy concerns, but in general, the right to know is upheld (Emerson 1979, 351).

References:

Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360

Kahane, Dennis S. “Colonial Origins of Our Free Press.” American Bar Association journal 62, no. 2 (1976): 202–206.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964): https://www.oyez.org/cases/1963/39

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Federalism as a system does not affect the way freedom of the press is interpreted, exercised, or applied.

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Freedom of the press is extremely entrenched in international law, demonstrating its high status. In 1644, John Milton began the discussion about freedom of the press in response to the British government having to approve each publication before it went to print. Before this time, media wasn’t common, so refuting such regulation didn’t make sense (Cunningham). In 1766, Sweden passed the first known act requiring freedom of the press (Cunningham). It was intended to prevent the Swedish government from having to approve each publication, much like Milton was advocating for in Britain a century earlier (Cunningham). Ten years later, this right appeared in the Virginia Declaration of Rights in 1776 and was later brought by Virginian James Madison to the United States Bill of Rights (Freedom of the press, 2018) .

Today, the protection of expression, media, and opinion is seen in conventions and declarations worldwide. The United Nations Universal Declaration of Human Rights (UDHR, 1948) has a wide reach and a broad expression of freedom as it is intended to apply to all people. Article 19 states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (UDHR, 1948) . Although the UDHR is neither a treaty nor legally binding, it has heavily influenced the development of international human rights law (Australian Human Rights Commission). The UN has also signed the International Covenant on Civil and Political Rights (ICCPR), a treaty that outlines rights that “derive from the inherent dignity of a person” ( 1966, Art. 19). Article 19 of the ICCPR ( 1966) outlines the freedom of expression, explicitly calling out the right to freely “seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Article 5 of the UN’s 1965 International Convention on the Elimination of Racial Discrimination explicitly expands this right to all people.

Regional supranational organizations have also called out this right explicitly. In 1953, the Council of Europe (which contains more member states than the European Union) adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Article 10 of the ECHR ( 1950) says the right of free expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The European Union has also adopted the EU Charter of Fundamental Rights ( 2009) , which states in Article 11 “the freedom and pluralism of media shall be respected.” The African Union and Organization of American States (OAS) took similar steps in 1981 and 1969, respectively, with Article 9 of the African Charter on Human and People’s Rights and Article 13 of the American Convention on Human Rights, also called the Pact of San Jose. These freedoms were reaffirmed in 2001 with a joint statement between the UN, OAS, and Organization for Security and Co-operation in Europe (OSCE) and again by the OSCE in the 2003 Amsterdam Recommendations.

At a state level, there are two extremes along a spectrum of free expression and press: Egypt and Norway. In Egypt, the 2014 constitution protects freedom of the press, though it is not protected in practice – government implemented censorship, imprisonment of journalists, and closures of media outlets are all prominent (Press freedom in Egypt, 2019) . Moreover, since 2015, journalists have been restricted to telling the “official” story rather than the real one (Egypt, 2021) . In Norway, there is a yearly report on the freedom of the press and expression, with the main complaints resulting from online government meetings, limiting press access (Norway, 2021) . The United States is between these two states, where freedom of the press is a highly respected right from the First Amendment of the Constitution and is fervently protected with limited exceptions usually resulting from Supreme Court decisions. Even so, today media freedom is limited due to distrust of “mainstream” sources and the loss of local news (United States, 2021) . Even local government recognizes the importance of this right, demonstrated by the 2019 passage of Queensland, Australia’s Human Rights Act.

References:

African Charter on Human and Peoples’ Rights. African Union. June 1, 1981. https://au.int/en/treaties/african-charter-human-and-peoples-rights

American Convention on Human Rights. Organization of American States. Nov. 22, 1969. http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp

Amsterdam Recommendations. Organization for Security and Co-operation in Europe. June 14, 2003. https://www.osce.org/files/f/documents/4/a/4 1903. pdf

Australian Human Rights Commission. (n.d.) What is the Universal Declaration of Human Rights? https://humanrights.gov.au/our-work/what-universal-declaration-human-rights

Cunningham. (n.d.) Brief history of press freedom, A. Britannica. Retrieved Sept. 3, 2021, from https://www.britannica.com/story/250-years-of-press-freedom

Charter of Fundamental Rights of the European Union. Dec. 1, 2009. https://fra.europa.eu/en/eu-charter

Egypt. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/taxonomy/term/156

European Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf

Freedom of the press. ( 2018, Aug. 21). History.com. Retrieved Sept. 3, 2021, from https://www.history.com/topics/united-states-constitution/freedom-of-the-press

Human Rights Act. Queensland Legislative Assembly. Mar. 7, 2019. Retrieved Sept. 3, 2021, from https://www.legislation.qld.gov.au/view/html/inforce/current/act- 2019- 005

International Convention on the Elimination of All Forms of Racial Discrimination. United Nations General Assembly (UNGA). Dec. 21, 1965. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx

International Covenant on Civil and Political Rights. UNGA. Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

Norway. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/norway

Tahir Institute for Middle East Policy. ( 2019, May 24). Press freedom in Egypt. https://timep.org/reports-briefings/timep-briefs/timep-brief-press-freedom-in-egypt/

United States. ( 2021) . Reporters without Borders. Retrieved Sept. 8, 2021, from https://rsf.org/en/united-states

Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights

U.S. Constitution. Amendment I. https://www.archives.gov/founding-docs/constitution-transcript

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The right to freedom of the press is commonly balanced against other rights and concerns, such as the right to privacy/ reputation and national security concerns. Freedom of the press is not inherently viewed to be above or higher than the right to privacy and potential security concerns, but rather the importance of freedom of the press is considered on a case by case basis, in comparison with the degree of other concerns. In the case of the right to privacy, free press can lead to an invasion of privacy in terms of the right of the public and the government to receive information, and can also lead to defamation especially in the case of false press or press being presented in a false light. When privacy law is applicable, historically, the courts try to assess how newsworthy and important the publication or information is for the public. The right to privacy often falls higher in the hierarchy of rights when the publication is not obviously important or newsworthy, whereas when the publication is very important for news purposes, the right to freedom of the press tends to be perceived as above the right to privacy. Additionally, in defamation cases, the degree to which reputation is harmed is considered by the courts. The courts may be more likely to uphold the right to reputation when a public figure is involved, and the cost to reputation is greater (Emerson 1979, 333).

Another important factor is national security concerns; a tricky issue in terms of freedom of the press. There has been disagreement over what necessitates or makes permissible prior restraint on the press due to national security concerns. One example includes the case of New York Times Company vs. United States in 1971 (New York Times Company v. United States). In 1967, Robert McNamara, the Secretary of Defense, conducted a government study about America’s involvement in Vietnam. The work was compiled in 7,000 pages, and only 15 copies were printed. The work revealed that the government had not been transparent with the American people about its engagement with Vietnam. The study was considered classified. Daniel Ellsberg, who had helped with the project, later secretly made more copies of the study and distributed them to New York Times employees who referred to them as “Pentagon Papers.” The Nixon Administration barred further publication of the papers by means of a restraining order due to what they considered national security concerns. The New York Times appealed to the Supreme Court, and the Court ruled that the New York Times could continue to publish the Pentagon Papers. The Court decided that the Nixon Administration did not have enough justification for barring the publication of the Pentagon Papers.

Justices took different stances on the issue at hand, with some believing prior restraint to never be justified and others believing it to be justified in certain circumstances, if a national security threat is clear and serious. These justices referred to the need for a “clear and present danger,” a precedent that established, in the case of Schenck vs. United States in 1919, that the First Amendment does not protect speech which creates a clear and present danger with which Congress is equipped to prevent, (Schenck v. United States). In New York Times Company v. United States, the majority ruled that the threat to national security by publishing the Pentagon Papers was too vague and unclear to impose restrictions on the press (New York Times Company v. United States). In certain circumstances, the Supreme Court has restricted First Amendment rights due to national security concerns. Typically, the Supreme Court attempts to find a balance between allowing freedom of the press and disallowing real security threats.

References:

Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360

New York Times Co. v. United States, 403 U.S. 713 (1971): https://www.oyez.org/cases/1970/1873

Schenck v. United States, 249 U.S. 47 (1919): https://www.oyez.org/cases/1900-1940/249us47

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A fundamental right that tends to conflict with freedom of the press is the right to privacy, which includes the protection of reputation. Two common conflicts between freedom of the press and the right to privacy are that between the right to publish and privacy and that between the right of the press to obtain information and the right to privacy. Beginning with the conflict between the right to publish and privacy, the issues concern the disclosure of embarrassing factual information about a person and the publishing of information that falsely displays a person to the public (Emerson 1979, 332). Historically, in cases where privacy law is applicable, the courts have tended to balance the importance of the publication for news purposes with the extent of the invasion of privacy. For instance, if the publication is not thought to be newsworthy or necessary, but most people would view it as offensive, the court would allow a claim to privacy. Although, the same claim to privacy may not stand in a case in which the publication is considered newsworthy. Similarly, in defamation cases, courts consider the extent to which reputation is harmed, and therefore courts may be more likely to protect the reputation of a public figure over that of someone more private (Emerson 1979, 333).

A specific case involving the conflict between the right to publish and privacy is Time Inc. v. Hill which took place in 1967 (Time, Inc. v. Hill 1967) . Hill and his family were held hostage in their home in 1952, and upon being released unharmed, they moved homes and requested limited publicity about what took place. Later, a novel came out about a similar situation which was also made into a play. Life magazine published an article about the play suggesting that it was a depiction of what happened to Hill’s family, even though the play reflected various incidents. The family sued for damages on the grounds that Life had knowingly presented false information about the Hill incident. Life suggested that the article was of public interest and was not published with malicious intent. The court determined that the Life article was not intended to be a source of news, but was rather distributed for advertising purposes. Subsequently, the family received compensatory damages (Time, Inc. v. Hill 1967) .

Another specific example is Cox Broadcasting Corporation v. Cohn which took place in 1975 (Cox Broadcasting Corporation v. Cohn 1975) . Cohn was the father of a seventeen year old girl who had been raped and killed in Georgia. Cox Broadcasting had obtained the girl’s name from public records and broadcasted the name during a news report. According to a Georgia privacy statute, names and identities of rape victims cannot be publicized. The court ultimately decided that the girl’s name was not a matter of public interest, and hence sided with Cohn, that the incident was an invasion of privacy (Cox Broadcasting Corporation v. Cohn 1975) . From these two cases, it is clear that at times, the right to privacy can limit the First Amendment right to freedom of the press, especially in cases presenting information in a false light.

The second main conflict is that between the right to privacy and the right to obtain information. The press has a right to obtain information voluntarily from private sources, however, it does not have the right to compel such information. The press is generally restricted by laws against wiretapping, trespass, theft, etc. In terms of receiving information from government sources, the press can claim the constitutional right to know. The right to know is used for the purpose of informing and transmitting information to the public, especially when the government is barring such communication (Emerson 1979, 333). There have however been cases in which the right of the press to obtain information has been limited for privacy concerns. For instance, in Pell v. Procunier journalists were prevented from interviewing prison inmates (Pell v. Procunier 1974) . Similar to the conflict between the right to publish and privacy, in many cases involving the right of the press to obtain information, the court attempts to balance the public’s right to know with privacy concerns. In the case of Pell v. Procunier, interviewing the inmates would not have provided the public with important information regarding the conditions of the prisons, and therefore the privacy of the inmates was upheld (Pell v. Procunier 1974) .

As of 1996, the Federal Freedom of Information Act was passed which gives public access to many federal records. However, there are nine exemptions to the Act that restrict public access to certain health and medical records, documents for the purpose of law enforcement, trade secrets or classified documents, among others. These exemptions are commonly referred to in right to know cases. Additionally, the Government in Sunshine Act of 1976 ensures that federal agency meetings are open to the public. An exception to this act is made in cases where the meetings contain, “information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.” The phrase, “clearly unwarranted invasion of personal privacy” has been broadly interpreted. Overall, the conflicts surrounding freedom of the press and privacy lack consistent legal procedure (Emerson 1979, 351).

References:

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975): https://www.oyez.org/search/Cox%20Broadcasting%20Corporation%20v.%20Cohn

Thomas I. Emerson, "The Right of Privacy and Freedom of the Press," Harvard Civil Rights-Civil Liberties Law Review 14, no. 2 (Summer 1979): 329-360

Pell v. Procunier, 417 U.S. 817 (1974): https://www.oyez.org/cases/1973/73-918

Time, Inc. v. Hill, 385 U.S. 374 (1967): https://www.oyez.org/cases/1965/22