Source/Freedom of the Press

History

What is the oldest written source in this country that mentions this right? BUILD IN COLLAPSE EXPAND TOGGLE

Afghanistan

Article 31 of the 1964 Afghani Constitution states that “every Afghan shall have the right to express thoughts through speech, writing, illustrations as well as other means in accordance with provisions of this constitution. Every Afghan shall have the right, according to provisions of law, to print and publish on subjects without prior submission to state authorities. Directives related to the press, radio and television as well as publications and other mass media shall be regulated by law.” This clause is now located in Article 34 of the 2004 Afghani Constitution.

Albania

Article 53 of the 1976 Albanian Constitution states that “citizens enjoy the freedom of speech, the press, organization, association, assembly and public manifestation. The state guarantees the realization of these freedoms, it creates the conditions for them, and makes available the necessary material means.”

Part 2, Article 22 of the 1998 Albanian Constitution recognizes freedom of the press, radio, and television as part of its list of “Fundamental Human Rights and Freedoms”. Article 22 also states that “Prior censorship of means of communication is prohibited.”

Algeria

Article 19 of the 1963 Algerian Constitution states that “the Republic guarantees freedom of the press and of other means of information, freedom of association, freedom of speech and public intervention, and freedom of assembly.”

Today, Article 54 of the Algerian Constitution protects freedom of the press, stating that “freedom of the press, be it written, audiovisual, or on media networks, shall be guaranteed equally for all public and private media outlets. It shall not be restricted by any form of prior censorship.”

Andorra

Article 12 of the 1993 Andorran Constitution states that Freedoms of expression, of communication and of information are guaranteed. The law shall regulate the right of reply, the right of correction and professional secrecy.”

Angola

Article 35 of the 1992 Constitution marked Angola’s first explicit legal mention of freedom of the press: “Freedom of the press shall be guaranteed and may not be subject to any censorship, especially political, ideological or artistic. The manner of the exercise of freedom of the press and adequate provisions to prevent and punish any abuse thereof shall be regulated by law.”

Article 44 of the 2010 Angolan Constitution maintains that “freedom of the press shall be guaranteed, and may not be subject to prior censorship, namely of a political, ideological or artistic nature.”

Antigua and Barbuda

Schedule 1, Chapter II of Antigua and Barbuda’s Constitution titled “Protection of Fundamental Rights and Freedoms of the Individual” explicitly protects freedom of the press.

Argentina

Article 32 of the 1853 Argentinian Constitution states that “the Federal Congress shall not enact laws that restrict the freedom of the press or that establish federal jurisdiction over it.”

Armenia

Article 42 of the 1995 Armenian Constitution protects freedom of the press: “The freedom of the press, radio, television and other means of information shall be guaranteed. The state shall guarantee the activities of an independent public television and radio offering a diversity of informational, educational, cultural, and entertainment programs.”

Australia

Australia has no formal protection of press freedom in its constitution. Australia’s High Court has ruled that an “implied freedom of political communication exists as an indispensable part of the system of representative government created by the Constitution” in Nationwide News Pty Ltd v Wills (1992), Australian Capital Television Pty Ltd v the Commonwealth (1992), and Unions NSW v New South Wales (2013).

Austria

Article 13 of Austria’s 1867 “Basic Law on the General Rights of Nationals in the Kingdoms and Länder represented in the Council of the Realm” states that “Everyone has the right within the limits of the law freely to express his opinion by word of mouth and in writing, print, or pictorial representation. The Press may be neither subjected to censorship nor restricted by the licensing System. Administrative postal distribution vetoes do not apply to inland publication.”

Azerbaijan

Article 50 of the Azerbaijani Constitution of 1995 states “The freedom of mass media is guaranteed. State censorship of mass media, including print media, is forbidden.”

The Bahamas

Article 23 of the 1973 Bahamian Constitution states that:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question makes provision which is reasonably required for the purposes of protecting the rights, reputations and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainment.”

Bahrain

Article 24 of the 2002 Bahraini Constitution states that “with due regard for the provisions of the preceding Article, the freedom of the press, printing and publishing is guaranteed under the rules and conditions laid down by law.”

Bangladesh

Bangladesh’s 1972 Constitution states that “the right of every citizen of freedom of speech and expression; and freedom of the press are guaranteed.”

Barbados

Barbados’s 1966 Constitution does not explicitly protect freedom of the press, but includes freedom to “receive” and “communicate ideas and information without interference” in its protection of freedom of expression.

Belarus

Belarus’s 1994 Constitution states that “No monopolization of the mass media by the State, public associations or individual citizens and no censorship shall be permitted.”

Belgium

Article 25 of the 1831 Belgium Constitution states that “The press is free; censorship can never be introduced; no security can be demanded from authors, publishers or printers. When the author is known and resident in Belgium, neither the publisher, the printer nor the distributor can be prosecuted.”

Belize

Belize’s 1981 Constitution states that “nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision… that is required for the purpose of… maintaining the authority and independence of the courts or regulating the administration or the technical operation of telephone, telegraphy, posts, wireless broadcasting, television or other means of communication, public exhibitions or public entertainments.”

Benin

Benin protects freedom of the press under Article 24 of its 1990 Constitution: “Freedom of the press shall be recognized and guaranteed by the State. It shall be protected by the High Authority of Audio-Visuals and Communications under the conditions fixed by an organic law.”

Bhutan

Article 7, Section 5 of Bhutan’s 2008 Constitution protects freedom of the press: “There shall be freedom of the press, radio and television and other forms of dissemination of information, including electronic.”

Bosnia and Herzegovina

Bosnia and Herzegovina’s Constitution does not formally protect freedom of the press. However, Article 4 of the 2002 Law on Communications recognizes freedom of expression across broadcasting and telecommunications.

Botswana

Chapter II, Section 12, subsection 2 of the 1966 Botswana Constitution states that “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision…regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless, broadcasting or television.”

Brazil

Article 179, Section IV of Brazil’s 1824 Constitution originally protected press freedom: “Everyone can communicate their thoughts, in words, in writing, and publish them in the Press, without dependence on censorship; as long as they will have to answer for the abuses that commit in the exercise of this Right, in the cases, and for the form, that the Law determines.”

Today, press freedom is protected under Chapter I, Article 5 of the 1988 Constitution: “expression of intellectual, artistic, scientific, and communication activity is free, independent of any censorship or license.”

Brunei

The Brunei Constitution contains no protections for freedom of the press and grants the government powers for “censorship, the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication” in states of emergency.

Bulgaria

The first mention of freedom of the press appeared in Article VIII of the 1879 Tarnovo Constitution: “The press is free. No censorship is allowed, and no pledge is required of writers, publishers and printers.” [Translated from Bulgarian]

Today, press freedom is protected under Article 40 of the 1991 Constitution: “The press and the other mass information media shall be free and shall not be subjected to censorship.”

Burkina Faso

Article 8 of Burkina Faso’s 1991 Constitution protects freedom of the press: “The freedoms of opinion, of the press and the right to information are guaranteed.”

Burundi

Article 28 of Burundi’s 1981 Constitution protected press freedom: “Everyone has the right to freedom of opinion and expression in accordance with the public and the law. Freedom of press is recognized and guaranteed by the State.”

Title XII, Article 284 of Burundi’s 2005 Constitution protects freedom of the press through the National Council of Communication: “The National Council of Communication has, to the effect, a power of decision notably in the matter of the respect for and the promotion of the freedom of the press and the equitable access of the diverse political, social, economic and cultural opinions to the public media.” While this clause does not appear in today’s 2018 Constitution, the National Communication Council is still referenced and maintains similar responsibilities.

Cambodia

Cambodia originally protected freedom of the press under Section 2, Article 9 of its 1947 Constitution: “Every Cambodian is free to speak, write, print and publish. He may, either by way of the press or any other means express, spread, defend every opinion so long as he makes no unauthorized use of that right or does not tend to disturb the public order.”

Today, Chapter III, Article 41 of the 1993 Cambodian Constitution protects press freedom: “Khmer citizens shall have freedom of expression of their ideas, freedom of information, freedom of publication and freedom of assembly.”

Cameroon

Section 16 of the 1972 Cameroonian Constitution’s Preamble protects press freedom, citing the United Nations’ Universal Declaration of Human Rights: “the freedom of communication, of expression, of the press, of assembly, of association, and of trade unionism, as well as the right to strike shall be guaranteed under the conditions fixed by law.”

Canada

Freedom of the press is protected under section 2(b) of Canadian Charter on Rights and Freedoms as part of the Constitution Act of 1982: “Everyone has the following fundamental freedoms: • (a) freedom of conscience and religion; • (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; • (c) freedom of peaceful assembly; and • (d) freedom of association.”

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.