Freedom of the Press
Constitutional and Historical Implications in the United States
Presentation By: Stephen
Monahan & Nick Giurleo
Constitutional Basis of Free Press
●
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 the redress of grievances.”
○ freedom of press
○ freedom of speech
○ right to privacy
●
Sixth Amendment:
○ How does the right to a fair trial connect with
freedom of the press?
(“United States Bill of Rights”)
Brief Timeline of the Political and Social History
of Freedom of Press in the United States
1791:
● Bill of Rights
ratified; First
Amendment
creates
constitutional basis
of freedom of press
Pre-Revolution: (pre-17751783)
● citizen journalism (i.e.
Sons and Daughters of
Liberty) uses the press
as a tool to motivate
the drive for
independence
Civil War (1861-1865):
● gives birth to the
modern age of
journalism:
romanticism to
realism
1798:
● Sedition Act is
passed by President
John Adams in one
of the earliest
attempts to limit the
powers of the press
1950s to today:
●
the advent of new
technologies like the
television and later the
Internet continue to
change the face of
press freedom
Spanish-American
War (1898): the rise of
yellow journalism and
muckraking
(Head)
Overview: Interpreting Constitutional Free Press
Interpretations of constitutional free press by the Supreme
Court can be found in the following cases:
1.
2.
3.
4.
5.
6.
Near v. Minnesota (1931)
Roth v. United States (1957)
United States v. New York Times (1971)
Miami Herald v. Tornillo (1973)
Hazelwood School District v. Kuhlmeier (1987)
Reno v. ACLU (1996)
Interpretations: Near v. Minnesota
Year of Ruling: 1931
Constitutional Question: Is censorship by prior
restraint allowed under the First Amendment?
Issue: prior restraint: an attempt to stop a
message before it reaches the public because it
is more threatening to the public welfare after it is
released than before it is released
Ruling: 5-4, No
●
except in extreme crisis situations (i.e.
attempts to directly incite rebellion)
(“Near v. Minnesota”)
Interpretations: Near v. Minnesota (Cont.)
●
Case Facts: J.M. Near and Howard Guilford publish in their
Minneapolis newspaper, The Saturday Press, harsh
accusations of corrupt behavior (i.e. gambling and bootlegging)
against local gangsters and Catholics and Jews in the city
● Local law enforcement find an antiquated local statute saying
that a judge could issue an injunction (a judicial restraint) to
stop all publications from media outlets of actions taken
creating a “ public nuisance”
● Near and Guilford appeal to the Minnesota Supreme Court; the
court holds the injunction; Near and Guilford then appeal to the
Supreme Court
● Ruling Reasoning: Chief Justice Charles Evan Hughes cites
English legal scholar Sir William Blackstone:
○ prior restraint has limited uses
○ Americans have the right to discuss the conduct of
others
○ a vigilant press cannot be punished according to the
First Amendment
(“Near v. Minnesota”)
Interpretations: Roth v. United States
Year of Ruling: 1957
Constitutional Question: Did either the federal or
California's obscenity restrictions, prohibiting the
sale or transfer of obscene materials through the mail,
impinge upon the freedom of expression
guaranteed by the First Amendment
Issue: limitations of freedom of expression of First
Amendment
Ruling: 6-3, No
●
●
●
obscenity not protected by free speech and press
defining obscenity satisfies Due Process
(“Roth v. United States”)
reversed in Miller v. California (1973)
Interpretations: Roth vs. United
States (Cont.)
Case Facts:
●
●
●
●
Samuel Roth operates a book-selling business in New York
local authorities convict Roth of mailing "obscene" circulars and an "obscene" book (i.e.
pornography) in violation of a statute banning the shipment of such material in California
case combined with Alberts v. California; Alberts was convicted for the same violation
along with composing and publishing "obscene" advertisements for his products
Roth and Albert arguments: state and local governments are applicable to amendments
due to Due Process Clause of Fourteenth Amendment (state and local governments
cannot deprive citizens of bill of rights); arrest violated his freedom of speech
Ruling Reasoning:
●
●
●
(“Roth v. United States”)
history has shown that the First Amendment does not protect all free speech (i.e. not
long after 1792 bill of rights, profanity was banned by many states)
First Amendment only protects speech that contains valuable ideas about science,
politics, art, religion, and other aspects of American society; free speech doesn't
protect "worthless speech" or speech "utterly without redeeming social
importance."
not all sex obscene; art and science and literature to an extent okay; obscenity test:
"whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to the prudent interest.”
Freedom of Expression
●
●
Freedom of Expression: the right of all to express their
views and opinions freely
Freedom of Speech
+ Freedom of Press
+ Freedom of Religion
+ Freedom of Assembly
+ Right to Petition = Freedom of Expression
= First Amendment
●
Constitutional Questioning:
○ Structural Restrictions on Press?
○ New Technologies?
○ Access to Information held by public
authorities (i.e. NSA, FBI)?
(“Freedom of Expression”)
Interpretations: New York Times v. United
States
Year of Ruling: 1971
Constitutional Question: Did the Nixon
administration's efforts to prevent the
publication of what it termed "classified
information" violate the First
Amendment?
Issue: Government’s limitation of
publication of information violate First
Amendment
Ruling: 6-3, Yes
●
(Mrspencer.info)
violated First Amendment
(A Reference Guide to US Supreme Court)
Interpretations: New York Times v. United
States (Cont.)
Case Facts:
●
●
●
●
Known as the "Pentagon Papers Case,"
Nixon Administration attempted to prevent the New York
Times and Washington Post from publishing materials
belonging to a classified Defense Department study
History of United States Activities in Vietnam
The President argued that prior restraint was necessary to
protect national security
Ruling Reasoning:
●
●
●
Court held that the government did not overcome the "heavy
presumption against" prior restraint of the press in this case.
Justices Black and Douglas argued that the vague word
"security" should not be used "to abrogate the fundamental
law embodied in the First Amendment."
Justice Brennan reasoned that since publication would not
cause an inevitable, direct, and immediate event imperiling
the safety of American forces, prior restraint was unjustified.
(New York Times Co. v United States)
(A Reference Guide to US Supreme Court)
Interpretations: Miami Herald
Publishing Co. v. Tornillo
Year of Ruling: 1973
Constitutional Question: Did the Florida state statute on
the “right to reply” (right to defend oneself when
publically criticized) violate the free press clause of the
First Amendment applied to the states through the
Fourteenth Amendment?
Issues: “right to reply” applied to free press clause
applied to states by Fourteenth Amendment (Due
Process clause)
Ruling: 9-0, Yes
●
●
“right to reply” violates free press clause
“right to reply” statutes are unconstitutional
(“Miami Herald Publishing Co. v. Tornillo”)
Interpretations: Miami Herald
Publishing Co. v. Tornillo (Cont.)
Case Facts:
●
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●
●
●
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Pat Tornillo is the Executive Director of the Florida Teacher’s Association and he
is running for the Florida House of Representatives in Dade County, Florida
The Miami Herald publishes two editorials criticizing Tornillo and his candidacy
Tornillo demands the Herald post his responses to the editorials; the Herald
refuses
Tornillo files a lawsuit citing Florida States Statute Section 104.38 (grants
candidates “right to reply” to newspaper editorial)
Herald claims statute violates free press clause
Circuit Court and State Supreme Court have contradicting rulings
Ruling Reasoning:
●
●
●
●
●
“right to reply” violates free press clause
Court recognizes that media distortions are not ideal, but the Constitution
specifically states that the government cannot legislate against their right to exist
“intrusion into the function of editors”
“a penalty on the basis of the content”
reiterates New York Times v. Sullivan which rules “right to respond” is
unconstitutional
(“Miami Herald Publishing Co. v. Tornillo”)
Interpretations: Hazelwood School
District v. Kuhlmeier
Year of Ruling: 1987
Constitutional Question: Did the
principal's deletion of the articles
violate the students' rights under the
First Amendment?
Issue: Violation of the First Amendment
Ruling: 5-3, No
●
Principal’s actions violated First
Amendment
(HAZELWOOD SCHOOL DISTRICT V KUHLMEIER.)
(Linzhengnd)
Interpretations: Hazelwood School
District v. Kuhlmeier (Cont.)
Case Facts:
●
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●
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The Spectrum was a student written and school-sponsored newspaper published
by Hazelwood East High School
In May 1983, Robert E. Reynolds, the school principal, received a draft for the
May 13 issue
Reynolds found two of the articles in the issue to be inappropriate, and ordered
that the pages on which the articles appeared be removed from publication.
Cathy Kuhlmeier and two other former Hazelwood East students brought the
case to court
Ruling Reasoning:
●
●
●
In a 5-to-3 decision, the Court held that the First Amendment did not require
schools to promote particular types of student speech.
The Court held that schools must be able to “set high standards for student
speech disseminated under their auspices”, and that schools “retained the right
to refuse to sponsor speech that was inconsistent with the shared values of a
civilized social order.'"
Educators did not offend the First Amendment by exercising editorial control over
the content of student speech so long as their actions were "reasonably related
(Landryamps)
to legitimate pedagogical concerns."
(HAZELWOOD SCHOOL DISTRICT V KUHLMEIER.)
Interpretations: Reno v. ACLU
Year of Ruling: 1996
Constitutional Question: Did certain provisions
of the 1996 Communications Decency Act
violate the First and Fifth Amendments by
being overly broad and vague in their definitions
of the types of internet communications which
they criminalized?
Issue: Provisions of decency act violate the First
and Fifth Amendments by being too broad
Ruling: 9-0, Yes
●
(Meldgaard)
violated First Amendment
(RENO v. ACLU)
Interpretations: Reno v. ACLU
(Cont.)
Case Facts:
●
●
●
ACLU challenged the constitutionality of two provisions in the 1996
Communications Decency Act.
Act intended to protect minors from unsuitable internet material,
○
the Act criminalized intentional transmission of "obscene or indecent"
messages as well as the transmission of information which depicts or
describes "sexual or excretory activities or organs" in a manner deemed
"offensive" by community standards.
After District Court rules the Act constitutional, Attorney General Janet Reno
appeals directly to the Supreme Court
Ruling Reasoning:
●
The Court held that the Act violated the First Amendment because its
regulations amounted to a content-based blanket restriction of free speech.
○
The Act failed to: “clearly define "indecent" communications, limit its
restrictions to particular times or individuals, provide supportive
statements from an authority on the unique nature of internet
communications, or conclusively demonstrate that the transmission of
"offensive" material is devoid of any social value.”
(RENO v. ACLU)
(Reach & Teach)
Pure Speech vs. Symbolic Speech
Pure Speech: written and spoken words that fall within
the scope of protection provided by the First Amendment
to the Constitution
●
●
directly protected by First Amendment
some limitations:
○ Roth v. United States (1957)
○ Schenck v. United States (1919)
Symbolic Speech: nonverbal gestures and action that are
meant to communicate a message
●
●
Stromberg v. California (1931)
Flag burning?
○ Texas v. Johnson (1989)
○ United States v. Eichman (1990)
(Griffin)
Political Cartoon:
The Big Type War of the
Yellow Kids (1897)
by R.F. Outcault
(Outcault)
Political Cartoon: Explanation
●
●
●
●
●
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Yellow Kid Comics: a series of comics first created
by artist R.F. Outcault in 1894 depicting life in
New York City
“Circulation War” between owner of New York
Journal William Randolph Hearst and owner of
New York World Joseph Pulitzer
Cartoon accuses Pulitzer and Hearst of using
press to provoke U.S. to initiate Spanish
American War (1898)
Pulitzer on left; text racist toward his Hungarian
accent; Hearst on right
Both men are depicted in the likeness of the Yellow
Kid character; the artist is suggesting both men’s
Circulation War was enhanced by provoking the
Spanish American War
Questions whether freedom of press has gone
too far in American society
(Muser)
(Outcault)
Political Cartoon:
The propaganda presidency of
George W. Bush. (2005)
By Stuart Carlson
(Carlson)
Political Cartoon: Explanation
●
●
●
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The propaganda presidency of George W. Bush:
a political cartoon created by the author Stuart
Carlson depicting the Iraq cash for flacks scheme
by President Bush
The cartoon depicts the Iraq cash-for-flacks
scheme, where American operatives paid Iraqi
journalistic mercenaries to publish a group of
political ads that outright was misrepresentation.
The cartoon suggests that American Operatives
are enhancing their public image to US Citizens
by paying people to make false propaganda about
the cash for flacks scheme
Questions whether Freedom of the Press has
gone far enough
(Weisberg)
(Carlson)
Modern and Future Applications of
Freedom of Press
New Technologies:
●
Do the freedom of press restrictions (i.e. extreme cases of obscenity, false
danger, etc.) apply equally to material published on the internet?
●
How will new technologies affect the future of journalism?
Ex. In an April 2014 opinion piece for the Huffington Post, commentator
Randy Bennett made the argument that as technology becomes more digital,
“the power of the written word” would increase. Do you agree?
●
How will the means of gathering information for reporting be affected by
new technologies?
(Bennett)
Bibliography
A Reference Guide to US Supreme Court. Ed. Stephen P. Elliot. N.p.: n.p., n.d. 117+. Print.
Bennett, Randy. "Why the Future of Media and Journalism Is Really Bright."Huffington Post Online. Huffington Post, 18 Apr. 2014. Web. 11
Nov. 2014.
Carlson, Stuart. Picture of American Operative Lieing on the News. Digital image. Slate Magazine. N.p., 2005. Web. 11 Nov. 2014.
"Freedom of Expression." Human Rights Education Association. Human Rights Education Association, 27 Nov. 2010. Web. 11 Nov. 2014.
Griffin, Kelli J. "Pure Speech and Symbolic Speech." American Civil Liberties Union (ACLU). American Civil Liberties Union (ACLU), 21 Sept.
2010. Web. 11 Nov. 2014.
Group of students reading newspaper with banner behind them. Digital image. Landryamps. N.p., 2014. Web. 10 Nov. 2014.
"HAZELWOOD SCHOOL DISTRICT V KUHLMEIER." Hazelwood School District v Kuhlmeier. IIT Chicago-Kent College of Law, 2005.
Web. 11 Nov. 2014.
Head, Tom. "History of Press Freedom in the United States." American Civil Liberties. ACLU, 23 Mar. 2010. Web. 11 Nov. 2014.
Bibliography (Cont.)
Linzhengnd. Newspaper front page is censored. Digital image. DocStoc. N.p., 15 Oct. 2011. Web. 10 Nov. 2014.
Meldgaard, Stéphanie. Picture of computer with error pop up saying first amendment error. Digital image. California Anti Slapp
Project, 29 Aug. 2014. Web. 10 Nov. 2014.
Miami Herald Publishing Co. v. Tornillo. Burger Court. 25 June 1974. Oyez Chicago-Kent College of Law. Chicago-Kent College of
Law, 11 July 2010. Web. 11 Nov. 2014.
Muser, Emeritus. "History of American Journalism." American Decades. American Decades, 20 May 2003. Web. 11 Nov. 2014.
Near v. Minnesota. Hughes Court. 1 June 1931. Oyez Chicago-Kent College of Law. Chicago-Kent College of Law, 4 Apr. 2010.
Web. 11 Nov. 2014
New York Times article describing results of the trial. Digital image.Mrspencer.info. N.p., 2014. Web. 10 Nov. 2014.
Bibliography (Cont.)
New York Times Co. v United States. Digital image. PBS. PBS, 1995. Web. 10 Nov. 2014.
"NEW YORK TIMES V UNITED STATES." New York Times v United States. IIT Chicago-Kent College of Law, 2005. Web. 10 Nov. 2014.
Outcault, R. F. "The Big Type War of the Yellow Kids." Library of Congress. N.p., n.d. Web. 11 Nov. 2014.
"RENO v. ACLU." Reno v. ACLU. IIT Chicago-Kent College of Law, 2005. Web. 10 Nov. 2014.
Roth v. United States. Warren Court. 24 June 1957. Oyez Chicago-Kent College of Law. Chicago-Kent College of Law, 7
Mar. 2010. Web.11 Nov. 2014.
The benefit of freedom of expression on the Internet outweighs the benefit of censorship. Digital image. Reach & Teach. The
Hayden Group & Reach and Teach, 2014. Web. 10 Nov. 2014.
Weisberg, Jacob. "The Propaganda Presidency of George W. Bush." Slate Magazine. N.p., 7 Dec. 2005. Web. 11 Nov. 2014.
"United States Bill of Rights." Bill of Rights Institute. Bill of Rights Institute, 4 May 2007. Web. 11 Nov. 2014.
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