Source/Freedom of the Press

History

When was it generally accepted as a fundamental, legally-protectable right?

The first piece of legislation granting citizens freedom of the press was the Swedish Freedom of the Press Act of 1776. The law allowed for free printing of anything that did not oppose religious faith, did not attack the constitution, and was not otherwise indecent (Nordin 2017, 137). In 1950, the European Convention of Human Rights accepted these same limitations for free press. The Swedish Freedom of the Press Act also gave citizens access to view official state documents. While other European countries had some level of free press, such as the Netherlands, the right to free press was not written into law (Nordin 2017, 138). The right to freedom of the press was accepted more globally with the publication of the United Nations Universal Declaration of Human Rights in 1948, which 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). Still, according to Freedom House, the population of the world with freedom of the press as of 2017 was only thirteen percent, due to limitations imposed by authoritarian regimes and Russian and Chinese regimes seeking to expand their global influence. There were even reports of threats to journalists and limitations to freedom of the press in some democracies (Dunham 2017).

As for the United States, the first guarantee of freedom of the press was written by George Mason in the Virginia Declaration of Rights in 1776 (Bogen 1983, 429). Thomas Jefferson revised Mason’s statement that “all men are born equally free and independent” when he wrote the Declaration of Independence (Vile). Likewise, James Madison later used the Virginia Declaration of Rights to help him in drafting the First Amendment in 1791. Specifically, the line “The Freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained by despotic Governments,” within the Virginia Declaration of Rights shows great similarity to Madison's later proposal for the guarantee of freedom of the press within the Bill of Rights (Bogen 1983, 445). Freedom of the press was accepted as a fundamental right for the United States as a whole with the ratification of the First Amendment in 1791 which states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances” (U.S. Const. amend. I). Freedom of the press is intertwined with freedom of speech, and both rights are seen as fundamental (Stewart).

What historical forces or events, if any, contributed to a widespread belief in its importance?

Within the thirteen colonies before the American Revolution, the government did not allow free press. Rather, any form of print had to have a government granted license. The government's initial opposition to free press stemmed from the printing of the first American newspaper in Boston in 1690 called, Publick Occurrences, Both Foreign and Domestick. The British government wanted to censor American media for fear of the spread of unfavorable information. Following the disallowance of Publick Occurrences, it was 14 years until another American newspaper was published. The governor of Virginia at the time, Sir William Berkeley, wrote, “I thank God, we have not free schools nor printing; and I hope we shall not have these hundred years. For learning has brought disobedience and heresy and sects into the world; and printing has divulged them and libels the government” (Kahane 1976, 203). Likewise, English law strongly opposed freedom of the press.

A major contribution to the shift to a widespread belief in the importance of freedom of the press in the United States was Cato’s Letters, a series of essays written by John Trenchard and Thomas Gordon between 1720 and 1723 (Trenchard & Gordon 1724). The essays consisted of revolutionary political ideas that largely criticized the British government. Cato viewed human nature as rooted in selfishness, suggesting that political decisions were too often made in the deciders best interest, not necessarily that of the public. For this reason, Cato emphasized the need for human rights and liberty as a check against the power of officials in order to avoid the oppression of some. He emphasized the need to fight against tyranny and corruption. While acknowledging the risks of libel, he endorsed citizen rights to free speech and free press. He believed that all citizens should have the ability to criticize the government accurately. The alternative- restricting freedom of the press, he suggested, would be beneficial only for the corrupt (McDaniel). Cato wrote, “There are some truths not fit to be told...But this doctrine only holds true as to private and personal failings; and it is quite otherwise when the crimes of men come to affect the publick” (Trenchard & Gordon 1724). Cato’s Letters were one of the most familiar essays of time, with people commonly referring to them as a justification and a defense of the rights they deserved, allowing the idea of freedom of the press to gain momentum. The essays were crucial to understanding the importance of and the meaning of the First Amendment, which stemmed from the Virginia Declaration of Rights (Bogen 1983, 446).

Another contributing event was the trial of John Peter Zenger, a printer in New York. In 1733, Zenger printed the New York Weekly Journal. The journal criticized the British royal governor of New York, William S. Cosby, accusing him of rigging elections and other corruption. While Zenger did not write the journal, he was sent to jail and accused of libel, which at the time meant publishing information in opposition to the government. At trial, Zenger was represented by Andrew Hamilton. While Hamilton admitted that Zenger did print the journal, he invoked a new principle, that libel was not punishable if true. Hamilton was able to convince the jury of Zenger’s innocence on the grounds that they could not prove that the content of his publication was false (Kahane 1976, 205). The verdict of the case did not have any serious impact on legal precedent because according to the specifics of the case, the jury ruled that Zenger had not printed the journal, even though Hamilton confessed that much. However, the trial did have the immediate effect of an increase in the amount of political satires printed, specifically those opposed to or critiquing some aspect of the government. This put pressure on less popular officials and increased the relative power of journalists (Olson, 2000).

More broadly, as for the world’s first law guaranteeing freedom of the press in Sweden, Sweden’s intellectual climate and institutional structure allowed for the adoption of ideas that were more radical at the time. Within Sweden, as in Western parts of the world, there was a spread of liberal theory. Liberal theory values the individual as necessary within society and politics. Likewise, liberal theory recognizes the need for change over time in order to advance and improve society. In combination with Sweden’s institutional structure, Sweden could more easily advance new laws (Nordin 2017, 139). At the time, the Diet: four estates including the nobility, the clergy, the burghers, and the peasantry, along with opposing political parties: the Hats and the Caps, ran political discussions and had political power. Around sixty percent of adult males would participate in political decisions. The executive, the Council of the Realm, would act according to the Diet. Sweden saw the greatest citizen participation in politics of any country in Europe. Therefore, unlike in other areas of Europe or the world at the time, citizens were more able to advance their own interests, which resulted in greater liberties pertaining to freedom of the press and free speech (Nordin 2017, 140).

Legal Codification

Is it contained in the US Constitution?

The right to freedom of the press is in the first amendment:

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (United States of America 1789 (Rev. 1992) Constitution - Constitute, 1992).

Has it been interpreted as being implicit in the US Constitution?

No, as the right is explicitly stated in the Constitution.

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).

Philosophical Origins

What have religious and philosophical traditions contributed to our understanding of this right?

Millian Utilitarianism

John Stuart Mill’s work of On Liberty (1859) argues against government forcing ideas on the public and argues for the liberty of the press. This would allow for the free reign of ideas and knowledge in society without coercion from the public or their government. This argument allows for inclusion and argues against the censorship of any idea or opinion, no matter the stance or status of the individual. This argument would say that if the power of coercion is exercised, the government or institution is illegitimate and the only way a government can be legitimate is through granting the liberty of the press and of speech.

“The time, it is to be hoped, is gone by, when any defense would be necessary of the ‘liberty of the press’ as one of the securities against corrupt of tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in [the] interests with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear… the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public…Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves, or by their government. The power itself is illegitimate.” (Mill, On Liberty, chapter 2 pp. 20-21).

Mill’s argument is that coercion is the source of illegitimate government and liberty of the press and speech allow for the free flow of opinions, ideas and knowledge that is the basis for political legitimacy. Government interference in this free flow is how government institutions stray from the public and cause illegitimacy. Mill argues for the freedom of the press and has this be the basis for political expression in legitimate governments.

Mill argues that the suppression of opinions by any person is to assume that this person has absolute certainty. This idea robs other humans from forming their own opinions about the first idea and if this suppression takes place, it says that the original idea is false because one person said so, not because the majority of people believe so. This act of suppression robs people of the right to form their own opinion and prevents majority opinions from being formed. Liberty, is then impossible because of this suppression of ideas, making freedom of the press vital to utilitarian ideals and public opinion in general (Mill, On Liberty, chapter 2 pp. 22-24).

Mill, John Stuart. On Liberty and Other Essays. 1859. Oxford World’s Classics, edited with introduction and notes by John Gray, 1991, pp. 20-24.