CLASSROOM LAW PROJECT
Democracy & What’s News – What’s a Citizen To Do?
Youth Summit 2009
LESSON 3
What does the Supreme Court have to say about free press?
Objectives
Handouts
Students analyze a free press case from the Supreme Court.
(3-1) Selected Laws and Court Decisions Related to Free Press;
(3-2) Oregonian v. Deiz, aka Privacy of Juvenile Courts Case; (3-3) New York
Times v. United States, aka Pentagon Papers Case; (3-4) Hazelwood School
District v. Kuhlmeier, aka School Newspaper Case; (3-5) Moot Courts in the
Classroom.
Background Press Overview
A. Daily warm-up
Check for understanding about America’s history of free press. Tell the story (or part of the
story) about why the press was important to the founders.
What’s news? Two recommended sites include The Reporters Committee for Freedom of
the Press, http://www.rcfp.org/, offering timely, relevant, and interesting articles from
various states; and Freepress Reform Media’s “must reads” at
http://freepress.net/newsroom.
B. What does the First Amendment mean?
When the Supreme Court hears a “First Amendment” case, its job is to interpret the
Constitution. What does that mean? There are two questions here: what does the First
Amendment mean, and what does it mean to interpret the Constitution?
Strategy: Understanding the First Amendment. Display text of the First Amendment on
an overhead (LINK – see Lesson 1, Handout 1-3). Highlight the bolded words:
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.
Thinking strategies are reminiscent of diagramming sentences. In small groups, ask
students take apart the words focusing on the bolded parts. Ask:
• What do the words mean?
• How are all the parts of the First Amendment related to one another? Does one work
without the others? Why or why not?
LINK – refer to Handout 1-3 (from Lesson 1) for text of free press provisions of U.S. and
Oregon constitutions, Universal Declaration of Human Rights, plus quotations. Highlight
similar provisions from the Oregon Constitution. Compare also with James Madison’s
freedom of press quotation.
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Youth Summit 2009
C. U.S. Supreme Court and Free Press
Part I. Strategy: Overview of free press cases.
In partners or groups of up to 4, students review and discuss Handout 3-1, Selected Laws
and Court Decisions Related to a Free Press. This handout is suitable for multi-grade levels.
For more advanced students, consider examining the list of 29 cases compiled by Cornell
University Law School. Each case name links the viewer directly to the court’s decision,
http://www.law.cornell.edu/supct/cases/topics/tog_freedom_of_the_press.html.
Teachers may ask students to take a global look from the whole list or a more detailed
examination of cases – whatever suits your style and students’ needs. Groups report back
on designated cases or which cases they found most interesting.
Part II. Strategy: Up close with a couple cases.
Teachers may select from two cases, one state and one federal. Both cases include a
summary of key facts, arguments from both sides, and the court’s decision. Cases include:
Oregonian v. Deiz, 389 Or. 277 (1980). An Oregon case, the Oregon Supreme Court
decides whether the press and public may be excluded from juvenile court proceedings
(Handout 3-2); and
New York Times v. United States, 403 U.S. 713 (1971). This is the “Pentagon Papers” case
in which the government tried to prevent newspapers from publishing top secret
information about the Viet Nam war (Handout 3-3).
Okay, we have a third case, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
(Handout 3-4). This is the school newspaper case that is more about what are reasonable
boundaries in school than about free press.
Activity: Moot Court
Teachers may wish to do a moot court activity in their classroom. Using one case above (or
divide class in half and do two), prepare to put on a simulated appellate court argument.
Moot court differs from a mock trial in that there are no witnesses or juries, and the facts are
at issue. In a moot court, students are lawyers or on the panel of judges deciding and
arguing the law. Handout 3-5 has all the details.
If you are short of time and cannot do a full moot court activity, try small group discussion
instead. Groups will take and defend one of the two litigants’ sides, or take the role of the
appellate judges. The litigant groups will examine their own strongest and weakest
arguments, and those of their opponent. The judges groups will look at the facts and
litigants’ written arguments and develop questions they think need to be answered.
Discuss as a whole class.
D.
Extended Activities
Quick Write/ Homework / Journal Entry
Journal Entry: Something I learned today about the connections between democracy, the
press, and being a citizen is
.
Extending the court cases activity, students reverse roles and take/defend the position of
the side they did not have in class. What is the other side’s strongest argument and why?
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Democracy & What’s News – What’s a Citizen To Do?
Youth Summit 2009
Based on the case(s) you studied, what does the Supreme Court say about free press? Do
you agree or disagree and why?
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Handout 3-1
Selected Laws and Court Decisions Related to a Free Press
Full text of each law or court decision is available at the website listed after the description.
Alien and Sedition Acts (1798)
This set of four acts passed by the Federalist Party, led by President John Adams, made it
illegal for anyone to publish anything that might "defame" the government. The acts were
declared illegal by Thomas Jefferson in 1801 during his term as president. See especially
the Sedition Act, Section 2:
http://www.loc.gov/rr/program/bib/ourdocs/Alien.html
Espionage Act (1917)
Passed during World War I, the act made it illegal to obtain or share information that might
interfere with the success of the armed forces or attempts to defend the country. The
Sedition Act (passed in 1918 as an extension of the Espionage Act and not to be confused
with the 1798 version) made it illegal to speak out against the government. It was repealed
in 1921:
http://www.firstworldwar.com/source/espionageact.htm
Freedom of Information Act (1966)
This spells out what kinds of government documents must be made available to the public
and under what circumstances documents can be withheld or redacted:
http://www.law.cornell.edu/uscode/uscode05/usc_sec_05_00000552----000-.html
New York Times Co. v. United States (1971)
The Supreme Court found that the U.S. government did not have the right of prior restraint
to keep the newspaper from publishing the Pentagon Papers:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=403&invol=713
Branzburg v. Hayes (1972)
The Supreme Court found that "reporter's privilege" does not exist, i.e., reporters do not
have an inherent constitutional right to keep sources confidential:
http://www.oyez.org/cases/case/?case=1970-1979/1971/1971_70_85
Source: http://www.pbs.org/wgbh/pages/frontline/teach/newswar/hand2.html
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Handout 3-2
Oregonian Publishing Company v. Deiz
aka Privacy of Juvenile Courts Case
Cite as: 389 Or. 277 (1980)
Facts of the Case
A 13-year old girl was charged with killing a younger child by drowning her. As was usually
done in juvenile matters, the juvenile court had not released to the news media the name of
the girl charged with the crime. But a newspaper discovered the name and published it. A
judge hearing the case barred the reporters from the courtroom because a state statute
said the public must be excluded from juvenile proceedings unless the child or her/his
parents ask for a public hearing or unless the judge finds someone has "a proper interest in
the case or the work of the court." The girl and her parents wanted the public and press
excluded from the hearing. The reporter and publisher of the paper asked the state
supreme court to order the judge to let them attend the juvenile hearing for two reasons
(1) because the public had "a proper interest" in the case in that they have a right to be
informed about the workings of the juvenile justice system; and (2) because the state
constitution says "no court shall be secret."
Question
Should juvenile hearings be closed to the public and press?
Arguments in favor (of the newspaper)
•
•
The press is entitled to attend the hearings under the "proper interest" in state law (ORS
419.498(1), on page 279 of the opinion). The press has a proper interest in this case
because it is important for the public to be informed and the press informs the public.
The Oregon Constitution says "no court shall be secret."
Arguments against (the government)
•
•
•
Because of the harm that may be caused to juveniles by public trials, ORS 419.498(1)
grants broad authority to the juvenile court judge to control access to the courtroom.
Art. S, §10 of the Oregon Constitution grants the right to a public trial to the litigants
and not to the public. Thus the judge can close the courtroom if the child requests that
it be closed. . In the alternative, ORS 419.498(1) violates Article I, §10 of the Oregon
Constitution (Section found on page 282 of the opinion).
The public has no "proper interest" because the parents may act as "judicial monitors,"
eliminating the need for the press to act as the public's watchdog.
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Holding (6-3 Decision)
No. The Oregon Supreme Court ruled that the statute excluding the public from juvenile
hearings is a violation of the Oregon Constitution. Oregon's Constitution, in addition to
providing a right to a public trial similar to the 6th Amendment of the U.S. Constitution, also
provides that "no court shall be secret." This section is not a right granted to the defendant
which may be waived at that person's request, but is a prohibition against secret court
proceedings limited only by a judge's power to exclude those who attempt to interfere with
or obstruct the proceedings.
The dissent said that privacy is needed to promote the goals of juvenile justice system and
that publicity could hamper a juvenile's rehabilitation. Citing as examples filiation and
guardianship hearings and hearings on admissibility of evidence in rape trials, the dissent
draws a distinction between "secret" court proceedings and "private” ones; private
proceedings should be allowed "in the interests of justice" when the constitution prohibits
secret courts.
Sources: Classroom Law Project
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Handout 3-3
New York Times v. United States
aka The Pentagon Papers Case
Cite as: 403 U.S. 713 (1971)
Facts of the Case
In what became known as the "Pentagon Papers Case," the Nixon Administration
attempted to prevent the New York Times and Washington Post from publishing materials
belonging to a classified Defense Department study regarding the history of United States
activities in Vietnam. The government, on behalf of the Nixon administration, argued that
prior restraint was necessary to protect national security. This case was decided together
with United States v. Washington Post Co.
Question
Did the government’s efforts to prevent the publication of "classified information" violate the
First Amendment?
Arguments in favor (of the newspaper)
•
•
•
The rule of “prior restraint” applies to individual or private wrongs, not general public
policy as in this case.
In cases of “prior restraint,” the government has a very heavy burden of showing how
the restraint is justified and it has not done so in this case.
The government cannot restrain the press under “ordinary circumstances” as it has
done here, in contrast to extreme emergencies.
Arguments against (the government)
•
•
•
Whatever the classification of the material (top secret or secret) and however the
newspaper may have come into possession of it, the First Amendment does not stop
the government for preventing its publication. It has done so many situations such as
cease and desist orders and enforcing copyrights.
The government may stop a newspaper from publishing material when its disclosure
poses a grave and immediate danger to national security.
Congress gave authority to the President. See the first exception to the Freedom of
Information Act for matters that “are specifically required by Executive order to be kept
secret in the interest of the national defense or foreign policy.”
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Holding (6-3 Decision)
Yes. The 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.
Sources: Summary above adapted from
http://oyez.org/cases/1970-1979/1970/1970_1873, and
James C. Foster & Susan M. Leeson, Constitutional Law: Cases in Context (1992);
Full text of case – http://supreme.justia.com/us/403/713/case.html.
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Democracy & What’s News – What’s a Citizen To Do?
Youth Summit 2009
Handout 3-4
Hazelwood School District v. Kuhlmeier
aka the School Newspaper Case
Cite as: 484 U.S. 260 (1988)
Facts of the Case
A journalism adviser, who supervised the school newspaper Spectrum’s staff, submitted each
edition to the principal for review, prior to publication. In May 1983, a substitute was advising the
newspaper because the regular journalism teacher left before the school year ended. After
reviewing the May 13 edition of the paper, principal Robert Reynolds decided that two articles
should not be published. The articles covered teenage pregnancy at Hazelwood East and the
effects of divorce on students. Reynolds decided to delete the two pages on which they appeared,
thus deleting additional articles as well.
This is how the story on teen pregnancy in the May 13 issue of the Spectrum began:
Sixteen-year-old Sue had it all — good looks, good grades, a loving family and a cute
boyfriend. She also had a seven pound baby boy. Each year, according to Claire Berman
(Readers Digest, May 1983), close to 1.1 million teenagers — more than one out of every
10 teenage girls — become pregnant. In Missouri alone, 8,208 teens under the age of 18
became pregnant in 1980, according to Reproductive Health Services of St. Louis. That
number was 7,363 in 1981.
The article followed with personal accounts of three Hazelwood East students who became
pregnant. The names of all three were changed:
Terri: I am five months pregnant and very excited about having my baby. My husband is
excited too. We both can’t wait until it’s born. . . .
Patti: I didn’t think it could happen to me, but I knew I had to start making plans for me
and my little one. . . .
Julie: At first I was shocked. You always think ‘It won’t happen to me.’ I was also scared
because I did not know how everyone was going to handle it. . . .
The principal believed the pregnancy article was inappropriate for a school newspaper and its
intended audience, and the girls’ anonymity was not adequately protected. He also believed that
the divorce article, in which a student sharply criticized her father for not spending more time with
his family, violated journalistic fairness because the newspaper did not give the girl’s father a
chance to defend himself. As the journalism class was, in part, designed to teach these notions of
fairness, Reynolds asserted that he was acting in the best interests of the school by censoring the
material.
Question
Did the principal violate student journalists’ First Amendment rights when he deleted two pages
from the school-sponsored newspaper?
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Holding (5-3 Decision)
No. The majority opinion said that the rights of public school students are not necessarily the
same as those of adults in other settings. The student newspaper at Hazelwood East High School,
the Court said, was not a "forum for public expression" by students, and thus the censored
students were not entitled to broad First Amendment protection. It said that when a school's
decision to censor is "reasonably related to legitimate pedagogical concerns," it will be
permissible. In other words, if a school can present a reasonable educational justification for its
censorship, that censorship will be allowed.
The Court went on to say that Hazelwood East principal had acted reasonably in removing the
stories in question. Upholding the censorship, the Court found that it was "not unreasonable" for
the principal to have concluded that "frank talk" by students about their sexual history and use of
birth control, even though the comments were not graphic, was "inappropriate in a schoolsponsored publication distributed to 14-year-old freshmen . . . ".
The Court said that the principal had the right to censor articles in the student newspaper that
were deemed contrary to the school’s educational mission. The Court said schools could censor
any forms of expression deemed “ungrammatical, poorly written, inadequately researched, biased
or prejudiced, vulgar or profane, or unsuitable for immature audiences,” or any expression that
advocates “conduct otherwise inconsistent with the shared values of the civilized social order.”
Justice Byron White wrote in the Court’s majority opinion, “A school must be able to set high
standards for the student speech that is disseminated under its auspices — standards that may be
higher than those demanded by some newspaper publishers or theatrical producers in the ‘real’
world — and may refuse to disseminate student speech that does not meet those standards.
“In addition, a school must be able to take into account the emotional maturity of the intended
audience in determining whether to disseminate student speech on potentially sensitive topics,
which might range from the existence of Santa Claus in an elementary school setting to the
particulars of teenage sexual activity in a high school setting.”
“Educators do not offend the First Amendment by exercising editorial control over the style and
content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.”
In his dissent, Justice Brennan wrote that he found the newspaper at Hazelwood East High
School to be a “forum established to give students an opportunity to express their views”. Justice
Brennan characterized the censorship at Hazelwood East as indefensible, saying it “aptly
illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the
‘mere’ protection of students from sensitive topics.
“Such unthinking contempt for individual rights is intolerable from any state official,” Brennan
wrote. “It is particularly insidious from one to whom the public entrusts the task of inculcating in its
youth an appreciation for the cherished democratic liberties that our Constitution guarantees.”
Sources: Excerpted from Education for Freedom, Lesson Plans for Teaching the First Amendment (see
this lesson for more detail and great Q/A)
www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/L08CaseSummaryHazelwood.htm, and Scholastic’s, The Hazelwood Decision and Student Press A Complete
Guide to the Supreme Court Decision
http://www2.scholastic.com/browse/article.jsp?id=4721.
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Handout 3-5
Moot Court Activity
A moot court is a role play of a state or federal appeals court or Supreme Court hearing. The
court, composed of a panel of justices, is asked to rule on a lower court's decision. No witnesses
are called. Nor are the basic facts in a case disputed. Arguments are prepared and presented on
a legal question (e.g., the constitutionality of a law or government action). Since moot courts are
not concerned with the credibility of witnesses, they are an effective strategy for focusing student
attention on the underlying principles and concepts of justice.
The following procedures are a slight adaptation of appellate procedures. The changes make the
moot court an appropriate educational activity for high school students.
Select a case that raises a constitutional issue. Adapt the case information to suit your
class. When selecting a case you may wish to consider the following factors:
• Is the content of the case relevant to your course, to a specific school outcome (e.g., civic
literacy or citizenship), or worth knowing?
• Is it interesting to students?
• Is it a topic of current interest in your community?
• Are community resource people available to assist with the lesson?
• Is there an underlying value conflict that is important for students to examine?
Read, review, and clarify the facts of the case. Have pairs of students ask each other the
following questions:
• What happened in this case?
• Who are the people/organizations/companies involved?
• How did the lower court rule on this case?
•
Who is the petitioner, the respondent?
Review terms such a these with the students:
Petitioner/Appellant: The person/organization/company who appeals the lower court
decision to a higher court.
Respondent/Appellee: The person/organization/company who argues that the lower court
decisions were correct.
Ask the class to identify the issue(s) involved in the case. An issue should be posed in the form
of a question. Ask the students to phrase the issue as a question by thinking about these
questions:
• Who was the actor(s)?
• What is the specific part of the Constitution involved?
• Who was affected by the action(s)?
• What caused the controversy?
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Pre-Court Preparation
Select an odd number of students (7 or 9) to be the justices of the court.
Divide the remaining students into two teams. One team will represent the person or group
appealing the lower court decision (the petitioner or appellant). The other team will represent the
party that won in the lower court (the respondent or appellee).
To increase student participation, several students can be selected to play the role of journalists.
Each team of litigants should meet to prepare arguments for its side of the case. The team
should select one or two students to present the arguments to the court. When discussing the
arguments, students should consider:
• What does each side (party) want?
• What are the arguments in favor of and against each side?
• Which arguments are the most persuasive? Why?
• What are the legal precedents and how do they influence this case? (A precedent is a
previously decided case recognized as the authority for future cases on that issue. Using
precedents allows for the development of more sophisticated arguments.)
• What might be the consequences of each possible decision? To each side? To society?
• Are there any alternatives besides what each side is demanding?
The justices should meet to discuss the issue involved and any case precedents. They should
prepare at least 5 questions for each side that they need answered in order to reach a decision.
The justices should select one student to serve as chief justice. The chief justice will preside over
the hearing. He or she will call for each side to present its case as well as recognize other
justices to ask questions.
Participants should consider all of the facts that have been established at the trial. Teams may
not argue the accuracy of the facts.
Arguments do not need to be rooted in legal technicalities. Any argument that is persuasive from
a philosophical, theoretical, conceptual or practical standpoint can be made. Teams should rely
on principles found or implied in the United States Constitution.
The Moot Court
Seat the justices at the front of the room. The attorneys for each side should sit on opposite sides
of the room facing the justices. The other team members should sit behind their respective
attorneys.
The chief justice should ask each side to present its arguments in the following order. The
justices may ask questions at any time.
Each side should have three to five minutes for its initial argument and two minutes for rebuttal.
(This time may need to be lengthened if the justices ask a lot of questions. The teacher should
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decide on a time limit based on the students' verbal skills.)
During and/or after each presentation, the justices can and should question the attorney in an
effort to clarify the arguments. Attorneys may ask for time to consult with other members of their
team before answering questions. (This time is included in the total time allowed for the
presentation.)
After all arguments have been presented, the justices should organize into a circle to deliberate
on a decision. The rest of the class can sit around the outside of the circle and listen, but they
cannot talk or interrupt the deliberations of the court.
In the circle, the justices should discuss all of the arguments and vote on a decision. Each justice
should give reasons for his or her decision.
The chief justice should then tally the votes and announce the decision of the court and the most
compelling arguments for that decision. A decision is reached by a majority of votes. A dissenting
opinion may be given.
Conclusion
Conclude with a class discussion of the decision and the proceedings. If you are using an actual
case, share the court's decision with the students after the student court has reached a decision.
In the event the student's decision and the Court's are different, it is helpful for the students to
understand the reasoning in the dissenting opinions as well as the majority. The students are not
wrong, but the majority of the real Court was influenced by different compelling arguments. Ask
the students to evaluate the reasoning the Court used in the majority and dissenting opinions and
compare these to their reasoning. (They think just like some of the justices...). Continue to debrief
the activity by discussing what the decision means for the both sides and for society.
Adapted and excerpted by Susan Marcus from materials by West Publishing Company.
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Background
Press Overview
By Lee Levine
Lawyer, Levine Sullivan & Koch
In the United States, the government may not prevent the publication of a newspaper, even
when there is reason to believe that it is about to reveal information that will endanger our
national security. By the same token, the government cannot:
* Pass a law that requires newspapers to publish information against their will.
* Impose criminal penalties, or civil damages, on the publication of truthful information
about a matter of public concern or even on the dissemination of false and damaging
information about a public person except in rare instances.
* Impose taxes on the press that it does not levy on other businesses.
* Compel journalists to reveal, in most circumstances, the identities of their sources.
* Prohibit the press from attending judicial proceedings and thereafter informing the
public about them.
Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions,
defines the “freedom of the press” guaranteed by the First Amendment. What we mean by
the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by
the perceptions of those who crafted the press clause in an era of pamphlets, political tracts
and periodical newspapers, and by the views of Supreme Court justices who have
interpreted that clause over the past two centuries in a world of daily newspapers, books,
magazines, motion pictures, radio and television broadcasts, and now Web sites and
Internet postings.
The framers' conception of freedom of the press has been the subject of intense historical
debate, both among scholars and in the pages of judicial opinions. (Compare, e.g., First
National Bank of Boston v. Bellotti (1978) with Potter Stewart, “‘Or of the Press’”; see also
Leonard Levy, Emergence of a Free Press.) At the very least, those who drafted and
ratified the Bill of Rights purported to embrace the notion, derived from William Blackstone,
that a free press may not be licensed by the sovereign, or otherwise restrained in advance
of publication (see New York Times Co. v. United States, 1971.) And, although the subject
remains a lively topic of academic debate, the Supreme Court itself reviewed the historical
record in 1964 in New York Times Co. v. Sullivan and concluded that the “central meaning
of the First Amendment” embraces as well a rejection of the law of seditious libel — i.e., the
power of the sovereign to impose subsequent punishments, from imprisonment to criminal
fines to civil damages, on those who criticize the state and its officials.
Press freedom: modern developments
To a great extent, however, what we mean by freedom of the press today was shaped in an
extraordinary era of Supreme Court decision-making that began with Sullivan and
concluded in 1991 with Cohen v. Cowles Media Co. During that remarkable period, the
Court ruled in at least 40 cases involving the press and fleshed out the skeleton of
freedoms addressed only rarely in prior cases. In contrast, although the Court in the early
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part of the last century had considered the First Amendment claims of political dissidents
with some frequency, it took nearly 150 years after the adoption of the Bill of Rights, and
the First Amendment along with it, for the Court to issue its first decision based squarely on
the freedom of the press.
That 1931 case, Near v. Minnesota, ratified the Blackstonian proposition that a prior
restraint — a legal prohibition on the press’s ability to publish information in its possession
— will almost always violate the First Amendment. Near is a landmark, not just because it
was the Court’s first decision to invoke the press clause, but because it established a
fundamental precept of constitutional law — that once the press has gotten its hands on
information that it deems to be newsworthy, the government can seldom, if ever, prevent
that information from being published.
There were a handful of press cases after Near and before Sullivan, and some of them are
important. In 1936 in Grosjean v. American Press, for example, the Court established that
governments may not impose taxes on a newspaper’s circulation, even when they are not
directed (at least on their face) to the content of any particular publication or at any specific
publisher. Sullivan, however, is, like Near, a landmark, not because the Court’s decision
effectively saved The New York Times from financial ruin for reporting the truth about civil
rights in the South, but because the Court deliberately seized the opportunity to expand the
reach of the press clause itself. At its core, the Court explained in Sullivan, freedom of the
press encompasses not just the right to be free from prior restraints on publication, but also
to be largely exempt from any punishment when it reports the truth about matters of public
concern — whether that punishment takes the form of imprisonment of a journalist, a
criminal fine against a newspaper, or an award of civil damages to a defamation plaintiff.
Indeed, when the subject of press scrutiny is a public official or a public figure, the Court
held in Sullivan that even a false statement is protected by the First Amendment unless it is
a “calculated falsehood” — a statement that a reporter or editor knows to be false or
probably false and deliberately publishes anyway.
Over the course of the quarter-century following Sullivan, the Court made it its business to
explore the ramifications of the case on a virtually annual basis. During that period, the
Supreme Court’s elaboration of what we mean by a free press focused on the nature of the
official restraint alleged to compromise that freedom as well as the extent to which the First
Amendment protects the press from a given species of governmental action or inaction.
Thus, in cases such as Near and the “Pentagon Papers” case (1971's New York Times Co.
v. United States, the Court established that freedom of the press from previous restraints
on publication is nearly absolute, encompassing the right to publish information that a
president concluded would harm the national security, if not the movements of troopships
at sea in time of war. In 1974's Miami Herald Publishing Co. v. Tornillo, the Court embraced
the analogous proposition that the government has virtually no power to compel the press
to publish that which it would prefer to leave on the proverbial “cutting room floor.”
In that regard, however, it must be noted that not all media are “created equal” when it
comes to entitlement to the full protections of the First Amendment’s press clause. Most
significantly, because of a perceived “scarcity” of the electromagnetic spectrum, the Court
has held that Congress and the Federal Communications Commission may regulate the
activities of broadcasters operating over “public” airwaves in a manner that would surely
violate the First Amendment if applied to newspapers. (Compare Red Lion Broadcasting v.
FCC (1969) with Tornillo.) The Court’s reasoning in Red Lion, in which it upheld the
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CLASSROOM LAW PROJECT
Democracy & What’s News – What’s a Citizen To Do?
Youth Summit 2009
Commission’s “Fairness Doctrine” and “personal attack” rule — i.e., the right of a person
criticized on a broadcast station to respond to such criticism over the same airwaves
licensed to that station — has never been disavowed, although the justices have expressly
declined to extend it to other, later-developed communications media, including cable
television (1994's Turner Broadcasting v. FCC) and the Internet (1997's Reno v. ACLU), to
which the “scarcity” rationale for regulation is plainly inapplicable.
Even in the broadcast context, however, Sullivan and the cases that followed it stand for
the proposition that the First Amendment protects the publication of truthful information
about matters of public concern, not just from prior restraint, but also from subsequent
punishment, at least in the absence of a demonstrated need to vindicate a competing
government interest of the “highest order.” This formulation has come to be known as “the
Daily Mail principle,” after the Supreme Court’s 1979 decision in Smith v. Daily Mail
Publishing Co., in which the Court held that a newspaper could not be liable for publishing
the name of a juvenile offender in violation of a West Virginia law declaring such
information to be private. The protections against subsequent punishments for reporting the
truth afforded by the Daily Mail principle are not absolute, but the barriers to such
government regulation of the press are set extremely high.
The First Amendment & false information
Sullivan and its progeny also hold that the First Amendment protects the publication of false
information about matters of public concern in a variety of contexts, although with
considerably less vigor than it does dissemination of the truth. Even so, public officials and
public figures may not recover civil damages for injury to their reputations unless they were
the victims of a reckless disregard for truth in the dissemination of a “calculated falsehood.”
Indeed, private persons may not collect civil damages for reputational harm caused by
falsehoods relating to a matter of public concern unless the publisher’s conduct violates a
fault-based standard of care. And although expressions of “opinion” are not always immune
from legal sanction, in its 1990 decision in Milkovich v. Lorain Journal Co., the Court held
that statements not capable of being proven false, or which reasonable people would not
construe as statements of fact at all, but rather as mere “rhetorical hyperbole,” are
absolutely protected by the First Amendment.
By the same token, the Supreme Court has been considerably less definitive in articulating
the degree of First Amendment protection to be afforded against restraints on the freedom
of the press that are indirect and more subtle than the issuance of a prior restraint or the
imposition of criminal or civil sanctions subsequent to publication. Thus, for example, in its
1978 decision Zurcher v. Stanford Daily, the Court held that the First Amendment does not
protect the press and its newsrooms from the issuance of otherwise valid search warrants.
Similarly, in 1979 in Herbert v. Lando, the Court concluded that the press clause does not
encompass a privilege that would empower a journalist to decline to testify about the
“editorial process” in civil discovery. Most significantly, in 1972 in Branzburg v. Hayes, a
sharply divided Court was skeptical of the contention that the First Amendment protects
journalists from the compelled disclosure of the identities of their confidential sources, at
least in the context of a grand-jury proceeding. The Court, however, has not addressed that
issue in the 30 years since Branzburg, and has effectively permitted the lower courts to
fashion an impressive body of law grounding just such a “reporter’s privilege” firmly in the
press clause itself. That privilege, however, is by no means absolute and may be forfeited
in a variety of circumstances, especially when no confidential source is thereby placed in
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Democracy & What’s News – What’s a Citizen To Do?
Youth Summit 2009
jeopardy or when disclosure is sought in the context of a grand-jury or other criminal
proceeding.
And, finally, the Court has held that the First Amendment affords the press and public
affirmative rights of access to at least some government proceedings. In a series of
decisions beginning with 1980's Richmond Newspapers, Inc. v. Virginia, the Court
established that the First Amendment not only protects the press from prior restraints and
other government-imposed penalties, but also invests the press and public with a right to
attend criminal trials and other judicial proceedings. This right, however, is not absolute and
is routinely balanced against other competing interests articulated by the proponents of
secret proceedings. Nevertheless, in such cases, and others like 1975's Cox Broadcasting
Corp. v. Cohn, the Court has expressly recognized the structural role that the press plays
as a “surrogate” for the larger public in gathering and disseminating information on its
behalf and for its benefit. Significantly, however, the Court has taken great pains not to
anoint the press with First Amendment-based rights and immunities beyond those enjoyed
by any speaker, “lonely pamphleteer” (see Branzburg v. Hayes, 1972), or Internet chatroom participant.
Indeed, the Court has rejected arguments advanced by the institutional press that, because
of its structural role in ensuring the free flow of information in a democratic society, it ought
to enjoy unique protections from otherwise generally applicable laws that inhibit its ability to
gather and report the news. Thus, in 1991 in Cohen v. Cowles Media Co., the Court
effectively concluded the treatise on the freedom of the press it began in Sullivan; it did so
when it emphasized that the press is properly subject to liability under the “generally
applicable” law of contracts when it breaks a promise to keep a source’s identity
confidential, even when it does so in order to report truthful information about the source’s
involvement in a matter of public concern.
New century of First Amendment jurisprudence
In the decade following Cohen, the Court again fell largely silent when it came to the First
Amendment’s application to the institutional press. As the 21st century dawned, however,
the Court interrupted that silence, at least briefly, to revisit the extent to which a “generally
applicable” law such as the federal wiretap statute can constitutionally impose criminal
penalties and civil liability on the dissemination by the press of the contents of unlawfully
recorded telephone conversations, at least when the information so disseminated is the
truth about a matter of public concern.
In 2001 in Bartnicki v. Vopper, the Court held that, even when a statute is directed at
deterring unlawful conduct (e.g., the interception of telephone conversations) and not at
penalizing the content of press reports, it nevertheless constitutes a “naked prohibition” on
the dissemination of information by the press that is “fairly characterized as a regulation of
pure speech” in violation of the First Amendment. In so holding, the Court ushered in a new
century of First Amendment jurisprudence by reaffirming both the Daily Mail principle — the
fundamental right of a free press to disseminate truthful information about public matters —
and the “central meaning of the First Amendment” on which it is based — Sullivan’s
recognition that the “‘freedom of expression upon public questions is secured by the First
Amendment’” so that “‘debate on public issues should be uninhibited, robust and wideopen.’”
Source: www.firstamendmentcenter/Press/overview/aspx
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