Freedom of the Press: Modern Period (1917 – Present)

Freedom of the press is a work in progress. The U.S. Constitution’s First Amendment provides that the U.S. Congress shall make no law abridging freedom of the press. State constitutions predating the adoption of the Bill of Rights in 1791 provide similar protection. Nevertheless, press freedom had limited scope and meaning when the United States entered World War I in 1917. At the time, courts and the vast majority of legal scholars held the view that the press clause protected only against government censorship, or prior restraint. Government, however, could rightfully punish after publication, as English jurist Sir William Blackstone (1723–1780) noted in his influential Commentaries on the Laws of England.

In June 1917, Congress passed the Espionage Act. The Act targeted, among other activities, the mailing of materials advocating treason, insurrection, or resistance to U.S. laws. The following year, Congress amended it with the Sedition Act of 1918. The Sedition Act criminalized statements intended to provoke or encourage resistance to the war effort. Many states passed similar statutes, resulting in more than 2,000 prosecutions and more than 1,000 convictions under federal and state laws. The repressive laws were part of the overall government attack on civil liberties during our nation’s first red scare (1917–1920).

Sometimes, government repression breeds unanticipated results. Because several defendants appealed their convictions to the U.S. Supreme Court, some of the justices—notably Oliver Wendell Holmes, Jr. (1841–1935) and Louis D. Brandeis (1856–1941)— reexamined their theories about dissent and national security. (Similarly, during this era, which included the Palmer Raids, the American Civil Liberties Union was formed.)

But post-WWI defendants did not benefit from the justices’ emerging theories on free press and free speech. The Court upheld the convictions of defendants in cases involving leafleting and periodicals: Schenck v. U. S., 249 U.S. 47 (1919), Frohwerk v. U. S., 249 U.S. 204 (1919), Abrams v. U.S., 250 U.S. 616 (1919), and Gitlow v. New York, 268 U.S. 652 (1925). (At the same time, in Schenck, Holmes, writing for a unanimous court, said a person might be convicted of a conspiracy to obstruct recruiting by mere words of persuasion. He said, ‘‘free speech would not protect a man in falsely shouting fire in a theater and causing a panic,’’ a now well-worn phrase. He also used the phrase clear and present danger, an expression that has found a place in popular culture.

Holmes also delivered the opinion in Frohwerk v. U.S. He acknowledged that the circulation of the German-language newspaper in question was too small to have an impact on recruiting. Nevertheless, he said, the paper posed a threat to national security because it ‘‘represented a little breath that could ‘kindle a flame’ in the ‘tinder box’’ of the Germany community. . .’’

That summer, intellectuals whom Holmes respected took issue with his view of the appropriate limits of government authority to punish subversive advocacy. Law professors Zechariah Chafee (1885–1957) at Harvard and Ernst Freund (1864–1932) at the University of Chicago and political scientist Harold Laski (1893–1950), also at Harvard, sharply criticized Holmes’ reasoning in Schenck and Frohwerk in articles published in the New Republic and Harvard Law Review, letters and in conversation. Laski, Chafee, and Holmes met for tea and discussion on July 23. It is not known what they said, but Holmes’ First Amendment position took a libertarian turn that October in Abrams v. United States. Seven justices upheld the convictions of Russian immigrant Jacob Abrams and others for circulating leaflets urging opposition to the war. Their writings posed a clear and present danger, the majority found.

But Holmes and Brandeis dissented, setting the Court on a decades-long search to establish a test to judge the point at which inflammatory words posed a danger to national security and community safety sufficient to justify state punishment. In Abrams, Holmes contended that the First Amendment protected the expression of political opinions ‘‘unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.’’ Holmes also first articulated what he said was a core value of the First Amendment, the marketplace theory of ideas, ‘‘that the best test of truth is the power of the thought to get itself accepted in the competition of the market.. . .’’ The free expression theory under girded much of the Court’s free press-free speech rulings in the 1960s and 1970s and has been invoked by proponents of broadcast deregulation.

Congress repealed parts of the espionage and sedition laws in 1921. Much of the Espionage Act remains in Title 18 U.S.C. 793, 794. (Fifty years later, the federal government unsuccessfully argued before the Court that the New York Times violated Title 18 U.S.C. 793, 794 by publishing the Pentagon Papers in New York Times Co. v. United States, 403 U.S. 713 (1971).

In the 1930s, a majority of the Court clung to the Bad Tendency Test. By the early 1950s, however, a majority applied various incarnations of the Clear and Present Danger Test. Finally, in Brandenburg v. Ohio, 395 U.S. 444 (1969), the justices developed a doctrine combining Holmes and Brandeis’s immediacy component with a requirement that expression must incite unlawful action to justify government restriction. The serious and imminent threat test is substantially more protective of subversive expression than any of the clear and present danger variants; some scholars contend it is yet another variation of the Clear and Present Danger Test. In the first decade of the twenty-first century, the Brandenburg serious and imminent doctrine remains the test for determining the constitutional limits on laws that punish political speech.

For the most part, the Brandenburg test also has protected the entertainment media against liability in incitement lawsuits—wrongful death and other kinds of negligence actions seeking monetary damages. Starting in the mid-1970s, such incitement lawsuits contended, for example, that disk jockey banter, sexually and violently explicit Rock lyrics, on-air stunts, and graphically vicious movie scenes instructed, urged, or inspired a family member to commit crimes leading toward death. The overwhelming number of the suits failed because appeals courts required that plaintiffs show specific intent to promote criminal activity and a direct causal link between exposure to words and resulting deaths.

But the U.S. Circuit Court of Appeals for the Eleventh Circuit allowed a jury award to stand against a magazine publisher in Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (1992). The appeals court ruled that an advertisement placed in Soldier of Fortune Magazine by a gun-for-hire offering his services to kidnap and murder was an obvious offer of criminal activity. The Court declined to review the ruling. In Rice v. Paladin, 128 F. 3d 233 (4th Circuit 1997), cert. denied, 523 U.S. 1074 (1998), the U.S. Circuit Court of Appeals for the Fourth Circuit reversed a grant of summary judgment favoring a book publisher and sent an aiding and abetting lawsuit back to trial. The appeals court said the publisher had stipulated that he had intended that ‘‘the book would immediately be used by criminals and would-be criminals in the solicitation, planning, and commission of murder.. . .’’ The Court declined to hear the publisher’s appeal.

Prior Restraint

Government may impose prior restraints under certain conditions. In Near v. Minnesota, 283 U.S. 697 (1931), the leading Court ruling on prior restraint, Chief Justice Charles Evans Hughes held that prior restraints are legitimate to prevent the obstruction of military recruiting, the dissemination of troop locations, transport dates and numbers, incitements of violence, and publication of obscenity. In the Pentagon Papers case, the Near doctrine protected the right of the New York Times to continue to publish classified government papers. Journalists and civil libertarians hailed Near and the Pentagon Papers rulings as major victories for press freedom.

In Snepp v. U.S., 444 U.S. 507 (1980), the Court ruled that nondisclosure agreements requiring former CIA agents from publishing without government approval were legitimate prior restraints. The Court also ruled that public school officials have the authority to impose prior restraints on student newspapers in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Government’s authority to license broadcasters; to limit public protest by time, place, and manner; and court injunctions to prevent violation of Copyright Laws are other forms of permissible prior restraints.

Sexual Expression

When does sexual expression become obscene? In 1917, such a determination was based on the Hicklin rule established in a British Parliamentary measure in 1868 and adopted by courts in the United States. The rule imposed a version of the highly restrictive Bad Tendency Test; materials that had a tendency to deprave and corrupt minds open to immoral influences could be banned as obscene. Hicklin remained the leading test of obscenity until U.S. Judge John Woosley’s ruling in U.S. v. One Book Called ‘‘Ulysses,’’ 5.Supp. 182 (S.D.N.Y.1933) A book is obscene, the judge said, only when it arouses lust in a person with average sexual instincts, rather than to minds open to immoral influences such as abnormal adults and children as the Hicklin rule required. Woosley ruled that James Joyce’s Ulysses, now acclaimed as a literary masterpiece, was not obscene.

In 1959, the Court handed down its first opinion on obscenity in U.S. v. Roth, 354 U.S. 476 (1957), establishing a nationwide standard. Justice William Brennan (1906–1997) fashioned the following test for obscenity: ‘‘whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest.’’ Brennan also declared that obscenity enjoys no protection under the law because it is ‘‘devoid of redeeming social importance.’’

Over the course of sixteen years, the Court wrestled with its definition of obscenity until it reached consensus in Miller v. California, 413 U.S. 15 (1973). Under the Miller guidelines—still the predominate test for obscenity—a judge or jury must weigh whether the ‘‘average person, applying contemporary community standards’’ would find that a work in its entirety appeals to prurient interests; whether the work depicts patently offensive sexual conduct; and whether it lacks serious literary, artistic, political, or scientific value.

Miller did not put to rest legal efforts to redefine obscenity. Feminists led by novelist Andrea Dworkin and law professor Catharine McKinnon waged an assault on pornography, persuading the Indianapolis– Marion County City–County Council to pass an ordinance banning pornography as sex-based discrimination. The U.S. Court of Appeals for the Seventh Circuit struck down the ordinance as unconstitutional in American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (1985). In New York v. Ferber, 458 U.S. 747 (1982), the Court placed the production and sale of child pornography outside the First Amendment’s protection.

Starting in the mid-1990s, the U.S. Congress pursued several mostly unsuccessful efforts to censor adult entertainment in cyberspace. The Court, for example, struck down two provisions of the Communications Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997), ruling that the Internet was entitled to a level of First Amendment protection historically enjoyed by print. Two decades after Ferber, the Court—acknowledging that computer technology allows one to make realistic human images without the use of live models—ruled the Child Pornography Prevention Act of 1996 unconstitutional. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), Justice Anthony M. Kennedy ruled that child sexual abuse recorded in child pornography is not the same as the expression of the idea of child sexuality created by digital technology.

In American Civil Liberties Union v. Ashcroft, 535 U.S. 564 (2004), the Court affirmed a lower court finding that the Child Online Protection Act (COPA) violated the First Amendment. Earlier, the Court ruled the Children’s Internet Protection Act (CIPA) constitutional in U.S. v. American Library Association, 539 U.S. 194 (2003). CIPA requires public libraries to place filters on computers to prevent children from accessing adult content.

Meanwhile, by one count, the number of pornographic Web pages grew from fourteen million in 1998 to 420 million within five years. In 2004, it was estimated that Americans spent $10 billion a year on adult entertainment.

Libel

For 173 years, courts considered libel—defamatory statements that harm reputation—outside the protection of the First Amendment. Consequently, citizens and journalists risked criminal prosecution and civil liability by accusing government officials of misconduct. Under most states’ seditious libel laws, truth was no defense. Under most states’ civil libel laws, truth was a defense, but a statement’s minor inaccuracies rendered an entire news report untrue. Thus, public officials could and did use such laws to intimidate or punish critics and muckrakers. In the early 1960s, the threat of such suits dampened news coverage of the civil rights movement.

That changed after the Court handed down its ruling in New York v. Sullivan, 375 U.S. 254 (1964), one of the Court’s most significant free press rulings. The ruling stemmed from a libel action brought by L. B. Sullivan, a public affairs commissioner in Montgomery, Alabama. Inaccurate and false statements published in a political advertisement in the New York Times in 1960 falsely defamed him, Sullivan charged. Sullivan won a $500,000 judgment against the Times.

Overturning the judgment, Brennan sought to create breathing space for the erroneous statements that are inevitably part of political debate and journalism reportage by creating a test for defamatory statements targeting public officials in their public capacity. The First Amendment, Brennan declared, required a public official to show with clear and convincing evidence that a defamatory statement about an official’s public conduct was made with actual malice or with knowing or reckless disregard for the truth. The ruling also declared the Sedition Act of 1798 unconstitutional, deemed that advertisements addressing social issues were political speech worthy of full First Amendment protection, and made libel law a federal constitutional matter. In following years, the Court required nongovernmental, public figures to meet the same standard in libel actions.

The ruling had an immediate impact beyond the legal sphere; it is widely believed that soon after, news coverage of the civil rights struggle increased. It has had long-term consequences. The Media Law Resource Center, for example, reports that since 1980, the annual average number of trials in each decade declined, and media defendants’ win percentage has increased during the same period.

Free Press v. Privacy

The press’s right to report on matters of public concern may be checked by an individual’s right to privacy, the right to be left alone. In 1890, Brandeis, then a Boston lawyer and Samuel Warren, also a lawyer, proposed a theory of a right to privacy to check what they saw as the press’s excessive gossip mongering. Their theory gave rise to civil actions (torts) in which plaintiffs sued for the emotional and physical harm resulting from invasion of privacy. In the early 1900s, the New York legislature and Georgia Supreme Court were the first to recognize such legal actions.

In 1960, another law review article sparked renewed interest in invasion of privacy torts. In that article, legal scholar William L. Prosser defined four types of invasion of privacy torts: intrusion, false light, appropriation, and publication of private matters. Most states allow plaintiffs to sue based on Prosser’s four legal actions.

Free press advocates are troubled by the intrusion and publication of private torts because, unlike libel, truth is not necessarily a defense in such cases. In the 1990s, plaintiffs recast intrusion complaints and other allegations of wrongdoing such as fraud and misrepresentation into news-gathering torts. Such new legal theories threatened to handcuff the press’s ability to gather news, particularly to conduct undercover investigations.

News-Gathering Torts

In its landmark ruling in Cohen V. Cowles Media Co., 501 U.S. 663 (1991), the Court held that journalists must obey laws that apply to everyone—laws of general applicability. In Cowles Media, the general applicable law was contract. Two newspaper reporters broke their promise of confidentiality to a source. As a result, the source lost his job.

Within a few years after Cowles Media, plaintiffs— mostly corporations—targeted journalists for alleged wrongs committed during news gathering. In the mid- 1990s, a lawsuit brought by the Food Lion, Inc. supermarket company against Capital Cities/ABC Inc. threatened to make investigative reporting too costly to pursue. Food Lion sued ABC-TV’s Prime Time Live for fraud, trespass, misrepresentations, and breach of loyalty stemming from the television magazine shows’ undercover probe of food preparation at a Food Lion store. The allegations of unsanitary food preparation were apparently true; they were caught on camera. Nevertheless, a jury awarded the company an astounding $5,545,750 in punitive damages and $1,400 in actual damages in 1997.

The size of the punitive damage award, many in the media argued, posed a grave threat to freedom of the press. Two years later, however, an appeals court reduced the award to a mere two dollars. The court ruled that undercover journalists did not defraud the company in Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).

As a general rule, the First Amendment does not license journalists to break the law to obtain information. The Court, however, held in Bartnicki v. Vopper, 532 U.S. 514 (2001) that the First Amendment protects news media outlets that disseminate information about a matter of public significance when a stranger breaks a law to obtain the information.

A small minority of state courts also allow a journalist to mount a substantive First Amendment defense during a criminal trial; that is, a judge allows a journalist to argue to a jury that he broke the law solely to publicize a publicly significant matter, did not benefit from the illegal act, or cause the harm the statute was designed to prevent. Typically, however, courts reject the notion that the First Amendment provides a defense to a criminal charge.

Access

It is almost universally accepted that governments have a legitimate interest in keeping sensitive military, espionage, and diplomatic information from the public. In the United States, laws establishing federal departments called ‘‘housekeeping statutes,’’ passed as early as 1789, allowed such departments to keep certain information secret. Even so, it was not until the cold war period that the news media and government clashed over public access to government documents.

Such conflicts led to the formation of a Special Subcommittee on Government Information, more popularly know as the Moss subcommittee after its chair, California Democratic Representative John E. Moss (1915–1997) in 1955. Meanwhile, prominent journalists and the American Society of Newspaper Editors (ASNE) spearheaded efforts to fight government secrecy. The ASNE formed the Freedom of Information Committee. Their combined efforts led to the passage of the Federal Public Records Law, known as the Freedom of Information Act (FOIA) in 1966.

The act provides a right of access to government information, although it provides nine categories of exemptions. The 1972 Federal Advisory Committee Act requires executive branch federal advisory committees to be open. The 1976 Government in the Sunshine Act requires public access to federal boards, commissions, and councils subject to the nine exemptions provided by FOIA. The 1996 Electronic Freedom of Information Act requires access to electronically stored databases. States and the District of Columbia have passed similar acts and Sunshine Laws requiring open access to public meetings.

The First Amendment, however, does not guarantee the press or the public a right to government information or access to meetings and places. From a free press advocate’s view, such lack of constitutional protection weakens the right to know, because statute-guaranteed rights are quite vulnerable to politics. Such advocates also argue that FOIA exemptions are so broad as to make the disclosure requirements almost meaningless.

In its September 2004 edition of Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know, the Reporter’s Committee for Freedom of the Press claimed the Bush Administration’s post-9/11 security measures severely threatened public access to government- held information. The committee identified Attorney General John Ashcroft’s 2001 memo, instructing agency heads on how to use FOIA exemptions to deny access by claiming invasion of privacy or breach of national security and new federal laws and regulations that override state open records laws as part of the effort limiting access. The committee, however, noted that the highly controversial USA Patriot Act had not had an impact on news gathering.

In the 1990s, the popularity of personal computers, allowing anyone access to the Internet, launched the Information Age. But quick and easy access to a wealth of government-collected data and information raised concerns about invasion of privacy. Privacy right advocates argued that the universal and almost effortless access to public records containing information such as social security numbers that the Internet provides posed a threat to privacy that did not exist when the same public records were stored in files in government buildings. Acting on that logic, access to driver’s license information that the public and press enjoyed for many decades was restricted under the federal Drivers Privacy Protection Act of 1994 and similar state statutes.

Fair Trial–Free Press

A presumption that local and federal trials are open to the public and the press predates the U.S. Constitution. Of course, the Founding Fathers did not contemplate photography cameras or radio and television broadcast equipment. But during the first four decades of the twentieth century, many judges allowed reporters to use photography cameras and radio transmission equipment at criminal trials. In 1937, the American Bar Association (ABA) adopted Judicial Canon 35 and spurred the federal government and all states to ban cameras and broadcasting equipment from courtroom proceedings. The ABA adopted Canon 35 in response to what many saw as the largely media-created chaos of the Bruno Hauptmann trial of 1937.

No court has held that the news media have a First Amendment right to televise courtroom proceedings. The Court, however, ruled in Chandler v. Florida, 449 U.S. 560 (1981) that states may televise trials as long as a defendant’s right to a fair trial is protected. Under Federal Rules of Criminal Procedure 53, only the Court and Congress have the authority to permit cameras at federal criminal trials. The Court exercised that authority when it declined to allow the oral arguments of Bush v. Gore, 531 U.S. 98 (2000) to be televised.

Although some reporter’s tools might be banned, the Court has held that reporters and the public have a First Amendment right to attend pretrial proceedings, jury selection, and trials. Lower federal and state courts have held that reporters have a right to attend other proceedings such as Bail and plea hearings.

The constitutional right of access does not extend to civil proceedings nationwide. Only a handful of federal appeals courts have ruled that reporters and the public have a constitutional right of access to such proceedings. Since the late 1980s, reporters and free press advocates have been highly critical of the practice by some judges of sealing files to prevent news of filings and settlements of lawsuits and the practice of deleting opinions from the public record.

Under the Constitution, judges have the authority to impose gag orders—another form of prior restraint— on reporters to protect a defendant’s right to a fair trial. But judges are required to adhere to a Balancing Test established in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). Can court-imposed injunctions effectively work as prior restraints in the Internet era? Any one with a website, access to e-mail, or access to chat groups can disseminate confidential government and court documents to thousands within minutes. The risk remains, however, that courts may use their contempt power to punish after publication.

Electronic Media

Radio did not start as a mass medium. In its earliest incarnation in 1900, mostly shipping vessels used radio wave transmitters and receivers to communicate ship to ship. Even then, governments recognized the need to regulate the airwaves, particularly for maintaining safety on the high seas. The radio wave spectrum is limited, and a frequency is useless when more than one entity transmits on or near it simultaneously. Consequently, the U.S. government started to regulate use of the airwaves in 1910.

By 1923, radio had become a mass medium; there were 556 broadcasting stations operating and 550,000 radio receivers that year. With the growing popularity of radio broadcasting, interference problems resurfaced. In response, Congress passed the Radio Act of 1927, which established the Federal Radio Commission. The Act authorized the commission to issue and revoke licenses to ensure clear radio transmission, to regulate programming for the public interest, convenience, and necessity, but not to censor broadcasters.

In 1934, Congress passed the Communications Act, folding the FRC and its authority into the newly created Federal Communications Commission (FCC). But the Act failed to clarify whether the authority to regulate in the public interest infringed on a broadcaster’s right to control its programming. The Court issued its first response to that question in National Broadcasting Co. v. U.S, 319 U.S. 190 (1943), noting that potential broadcasters far outnumbered the availability of radio frequencies and, consequently, government regulation was necessary. Under that rationale—otherwise known as spectrum scarcity—radio and television broadcasters do not enjoy the full First Amendment rights accorded print journalists.

The Court reaffirmed the doctrine’s legitimacy in Red Lion Broadcasting Co. Inc. v. FCC, 395 U.S. 367 (1969). In its ruling, the Court upheld the FCC’s fairness doctrine that requires radio and television outlets to allow targets of on-air personal or political attacks to reply. The Court also noted that the public’s First Amendment rights are paramount to broadcasters’. The FCC eliminated the fairness doctrine in 1987. Nevertheless, it is still constitutionally valid, having never been struck down by the Court. In contrast, the Court struck down a similar right-toreply imposed on newspapers in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

The Court held in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), that the uniquely pervasive presence of broadcasting in the home justifies FCC authority to fine licensees for indecent broadcasting. In contrast, print publishers and writers of sexually explicit expression are subject only to prosecution for obscenity.

Civil libertarians and free market advocates argue that spectrum scarcity is not a valid rationale for government regulation of broadcast because cable and satellite television, the Internet, and the technological capability to splice the spectrum have dramatically increased consumers’ choices of electronic media. In the 1970s and 1980s, the Court seemed as though it was open to reexamine its spectrum scarcity- public trustee rationale in its ruling in CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) and FCC v. League of Women Voters of California, 468 U.S. 364 (1984). Yet as of 2005, the Court had not abandoned the spectrum rationale.

It has, however, ruled that spectrum scarcity does not provide a rationale for government licensing of cable TV outlets, communication satellites in Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1944), and or the Internet in Reno v. ACLU, 521 U.S. 844 (1997). Under Reno v. ACLU, the Court held that the Internet enjoys the substantial First Amendment protections afforded the print media.

The Court has not made clear the precise contours of cable’s First Amendment protections. The government, for example, has the authority to require some cable operators to set aside channel capacity for local broadcasters as the Court held in Turner Broadcasting System v. FCC, 520 U.S. 180 (1997). On the other hand, in U.S. v. Playboy Entertainment Group, 529 US 803 (2000), the Court declined to apply the restrictions of FCC v. Pacifica Foundation on cable television.

Reporter’s Privilege

The press argued that reporters should be shielded from forced testimony as early as 1848 when the U.S. Senate put New York Herald reporter John Nugent under arrest, the first recorded jailing of a journalist for refusing to identify a confidential source. Nugent refused to reveal the identity of the source who gave him a copy of a secret draft treaty between the United States and Mexico. After a month, the Senate released Nugent. Most historians believe then-Secretary of State James Buchanan was the source of the leak.

In 1957, the same newspaper—then the New York Herald Tribune—engaged in another dispute over the reporter’s privilege to remain silent. The newspaper argued in Garland v. Torre, 259 F. 2d 545 (1958), that journalists enjoy a reporter-source privilege under the First Amendment. The Herald Tribune was the first to make a First Amendment argument for such a testimonial privilege for journalists, but to no avail. A federal appeals court rejected the argument.

Twelve years later in Branzburg v. Hayes, 408 U.S. 444 (1969), the Court declined to find a testimonial privilege for an agreement a journalist makes with a source to conceal information. The ruling was five to four, and a plurality opinion said prosecutorial badfaith investigations amounted to impermissible harassment. A concurring opinion noted that courts would protect journalists ‘‘where legitimate First Amendment interests require protection.’’ In addition, Justice Potter Stewart’s (1915–1985) dissent offered a rationale for striking the proper balance between freedom of the press and the general obligation to respond to a subpoena.

By the early years of the twenty-first century, eleven of twelve federal appeals courts recognized some form of qualified reporter’s privilege, with the Eighth Circuit as the exception. Courts and legislatures in forty-nine states and the District of Columbia also recognized a qualified reporter’s privilege. Most used Stewart’s Balancing Test. Statutes that provide protection against forced testimony by reporters are called shield laws, and in response to the scandal stemming from the outing of Valerie Plame, a CIA operative, by a newspaper columnist, federal legislators proposed two versions of a federal shield law in 2005.

In 1791, few doubted that freedom of the press entitled pamphleteers to protection under the newly adopted Bill of Rights. Yet in the first decade of twenty-first century, bloggers—the modern-day counterpart to pamphleteers—had yet to earn the full protections and privileges enjoyed by traditional reporters. In 2005, for example, a California appeals judge in Apple Computer, Inc. v. Doe, 1-04-CV-032178 (2005), declined to address whether bloggers were qualified to invoke the reporter’s privilege to remain silent. Freedom of the press is a work in progress.

ARTHUR S. HAYES

References and Further Reading

• Blackstone, William. Commentaries on the Laws of England. Chicago: University of Chicago Press. 1991.
• Cornwell, Nancy C. Freedom of the Press: Rights and Liberties under the Law. Santa Barbara: ABC-CLIO, Inc. 2004.
• Reporters Committee for Freedom of the Press. Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know, https://www.rcfp.org/homefrontconfidential, (2005).

Cases and Statutes Cited

• Abrams v. U.S., 250 U.S. 616 (1919)
• American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323 (1985)
• American Civil Liberties Union v. Ashcroft, 322 F. 3d 240 (3d Cir. 2003)
• Apple Computer, Inc. v. Doe, 1-04-CV-032178 (2005)
• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
• Bartnicki v. Vopper, 532 U.S. 514 (2001)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)
• Braun v. Soldier of Fortune Magazine, 968 F.2d 1110 (1992)
• Bush v. Gore, 531 U.S. 98 (2000)
• CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973)
• Chandler v. Florida, 449 U.S. 560 (1981)
• Cohen V. Cowles Media Co., 501 U.S. 663 (1991)
• FCC v. League of Women Voters of California, 468 U.S. 364 (1984)
• FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
• Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Circ. 1999)
• Frohwerk v. U.S., 249 U.S. 204 (1919)
• Garland v. Torre, 259 F. 2d 545 (2d Cir., 1958)
• Gitlow v. New York. 268 U.S. 652 (1925)
• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
• Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)
• Miller v. California, 413 U.S. 15 (1973)
• National Broadcasting Co. v. U.S. 319 U.S. 190 (1943)
• Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
• Near v. Minnesota, 283 U.S. 697 (1931)
• New York v. Ferber, 458 U.S. 747 (1982)
• New York Times Co. v. United States, 403 U.S. 713 (1971)
• New York v. Sullivan, 375 U.S. 254 (1964)
• Red Lion Broadcasting Co. Inc. v. FCC, 395 U.S. 367 (1969)
• Reno v. ACLU, 521 U. S. 844 (1997)
• Rice v. Paladin, 128 F. 3d 233 (4th Circ.1997),cert. denied, 523 U.S. 1074 (1998)
• Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)
• Schenck v. U.S., 249 U.S. 47 (1919)
• Snepp v. U.S., 444 U.S. 507 (1980)
• U.S. American Library Association, 539 U.S. 194 (2003)
• U.S. v. Playboy Entertainment Group, 529 U.S. 803 (2000)
• U.S. v. One Book Called ‘‘Ulysses,’’ 5.Supp. 182 (S.D.N. Y.1933)
• U.S. v. Roth, 354 U.S. 476 (1957)