Freedom of the Press

Consider these two fictional headlines about King George raising taxes:

"King George Forces his Subjects to Pay Higher Taxes," or

"King George Enacts Brilliant Plan to Improve the Country's Budget."

If you read the first headline, you would be feeling pretty angry towards the king. But the second one makes it sound like he's got your back.Now, what if King George was in charge of newspapers? Which headline do you think he would use?The way we report the news impacts the way people understand the world. If newspapers omit certain facts or highlight others, the story can sound completely different, even if the facts are the same. That's why Freedom of the Press is so important for sharing information and maintaining government accountability and transparency!

Freedom of the Press Definition

Freedom of the Press is a right included in the United States Constitution. It means people and news sources should be able to print news, facts, and opinions without government censorship or retaliation.

Freedom of the Press Amendments

As tensions grew in the years leading up to the American Revolution, England started trying to censor the press to control pro-revolution ideas. When it came time for the American colonies to declare independence from England and create their own system of government, they wanted to ensure that the press was independent and free from government censorship.

Figure 2: This July 6, 1776 edition of the Pennsylvania Evening Post that printed the Declaration of Independence shows how quickly the press can spread information and ideas. Source: Pennsylvania Evening Post, Wikimedia Commons

Virginia was the first state to include freedom of the press in its Declaration of Rights, which stated:

United States Constitution

Individual rights weren't added to the Constitution until after it was ratified in 1789. The Bill of Rights (made up of the first ten amendments to the Constitution) was added two years later in 1791.

TheFirst Amendmentincluded some very important individual rights, one of which was freedom of the press. The text reads:

Some people have pointed out that Freedom of Speech is pretty similar to Freedom of the Press. After all, "speech" can be interpreted to mean all forms of expression, including printing in news media outlets. However, historians believe that Freedom of the Press was included as its own separate item intentionally. Supreme Court Justice Stewart argued that it is "no constitutional accident," but rather,“一个承认所发挥的关键作用the press in American society."¹

Freedom of the Press Foundation

The invention of the printing press in the 15th century meant that ideas, information, news, and knowledge could be printed more easily - and therefore, spread farther and more quickly. While this was great for human progress, it represented a threat to leaders who didn't want criticism or uprisings to spread.

Figure 1: A 16th century painting depicting a printing press in action. Source: Wikimedia Commons

In 1538, King Henry VIII of England imposed a new rule requiring publications to be approved by a Privy Council so that he could have greater control over what was being printed. The policy was extremely unpopular. His daughter, Queen Mary I, ended that policy but created a new policy where only one company (conveniently, one that was in favor of her rule and aligned with her goal of suppressing the Protestant Reformation) received a royal charter to print documents. When her sister, Queen Elizabeth I, gained the crown, she used a similar method to censor the press - this time to suppress the Catholics.

Freedom of the Press Summary

Even though the Constitution protects freedom of the press, there have been a few examples throughout history where it wasn't quite as simple.

Sedition Act of 1798

Less than a decade after the Bill of Rights codified freedom of the press, Congress (encouraged by President John Adams, a member of the Federalist party) passed a law that seemed to directly contradict it. The Sedition Act of 1798 made it illegal to "print, utter, or publish...any false, scandalous, and malicious writing" about the government.²

The law immediately drew outrage from critics, who said that it was designed to censor the Democrat-Republican party, which had been vocal in criticizing the Federalist party. For his part, President Adams said that the law was necessary for national security because of the threat of war with France. In the end, suppressing the press and free speech made President Adams extremely unpopular and he lost second election. The law expired in 1801.

Espionage Act of 1917

The next major iteration of government censorship came during World War I, with the Espionage Act of 1917 and the Sedition Act of 1918. The Espionage Act made it illegal to share any information related to national security with the intent of harming the United States. It also made it a crime to hinder the military's recruitment and drafting efforts.

The Sedition Act of 1918 was an amendment to expand the Espionage Act. The Act made it illegal to limit any speech criticizing the war. Again, critics derided the laws as a violation of the First Amendment rights to freedom of speech and freedom of the press. The government argued that reducing individual rights was necessary during times of war to preserve national security and maintain morale.

Figure 3: This anti-war political cartoon from 1918 was prosecuted because of the Espionage Act and Sedition Act. Source: Art Young, Wikimedia Commons

Whistleblowers

Whistleblowers have also been important throughout history regarding the freedom of the press.

Edward Snowden is an infamous whistleblower who worked for the National Security Agency (NSA). In 2013, he shared information about the NSA's undercover data mining operations and how the agency had been spying on the private data of millions of people.

His actions outraged some people (in particular, many leaders in the US government and national security personnel) while others praised him for blowing the whistle on government surveillance.Snowden was charged with violating the Espionage Act and had to seek asylum in Russia.However, as a result of public outrage, stricter standards for collecting private data were passed, along with more protections for whistleblowers.

Freedom of the Press Examples

Because "freedom of the press" isn't defined in the Bill of Rights, it is often left to the Supreme Court to decide what it means and when it should be enforced.

Prior Restraint

The case ofNear v. Minnesota(1931) established a Supreme Court doctrine opposing the practice ofprior restraint.

A man named Jay Near published an article criticizing government officials and accusing them of working with gangsters.One of the government officials filed an injunction to try to get the court to block the article from being published, citing a law preventing the publication of malicious or inflammatory material.

When the newspaper appealed to the Supreme Court, they sided with the newspaper and declared the law unconstitutional. They defined freedom of the press as "laying no prior restraints upon publication,"³and said that laws enforcing prior restraint were"the essence of censorship."⁴

Criticizing Public Officials

TheSupreme Courthas also ruled in favor of prioritizing freedom of the press over protecting the reputation of public officials. In the case ofNew York Times v. Sullivan(1964), a public safety commissioner named L.B. Sullivantried to sue the New York Times for an ad they ran criticizing him, citing several errors that were printed. The ad, called "Heed Their Rising Voices," asked for donations for the civil rights movement and listed some grievances against police officers. However, the ad had some errors, such as the number of times Martin Luther King Jr. had been arrested and the song the protesters sang.

TheSupreme Courtruled against Sullivan, saying that being able to prosecute newspapers for honest mistakes could lead to a "chilling effect" on freedom of the press. The press needs to be able to criticize public officials without fear of retaliation. They created the "malice test," which says that public officials have to prove that the mistake was printed "with knowledge that it was false or with reckless disregard of whether it was false or not."

National Security

Remember how the government cited national security as the basis for the Sedition Act of 1798 and 1918? This also came up inNew York Times v. United States(1971).

The case happened during the Vietnam War, which started in 1955 and was extremely unpopular by the 1960s. Awhistleblowerworking for the Pentagon leaked a number of documents (called the Pentagon Papers) to the press showing that the United States' involvement in the war was incompetent and corrupt. President Richard Nixon tried to file an injunction so that the courts would halt the publication of the documents, arguing that it was a matter of national security.

The Supreme Court ruled against Nixon and said that attempts to useprior restraintwill bear a "heavy presumption" against constitutional validity.