Warm Up 12/9
Explain and give an example
of the concept of an
“adversarial press.”
Objectives
• Describe the difference between bias and
unfair/unethical newspaper practices.
• Evaluate the checking power in the first
amendment.
What are ethics?
What makes a newspaper
unfair or unethical?
• They get the facts wrong.
• They refuse to admit errors.
• They won’t name names.
• They concentrate on bad news.
• They insert editorial bias into news
stories.
A deliberation is...
• A meaningful discussion – the focused
exchange of ideas and the analysis of
arguments with the aim of making a decision
Deliberation: How To
Read the material carefully.
Use your heart and mind to express
ideas and opinions.
Focus on the deliberation question.
Listen carefully to what others are
saying.
Remain engaged and respectful
when controversy arises.
Focus on ideas, not personalities.
Check for understanding.
Analyze what others say.
Speak and encourage others to
speak.
Refer to the reading to support your
ideas.
Use relevant background knowledge,
including life experiences, in a logical
Important SC Cases
• Rex v. Zenger (1735)
• The colony of New York tried publisher John Peter Zenger for
seditious libel against the governor. At that time, truth was not a
defense in a libel case. Zenger’s attorney told the jury of their
power and duty to judge the law as well as the facts, and the jury
acquitted Zenger. Though not a Supreme Court case, this is a
landmark freedom of the press case.
• People v. Croswell (1804)
• Harry Croswell was convicted of libel for printing a story critical of
President Thomas Jefferson in his newspaper. Alexander Hamilton
represented Croswell on appeal and argued that truth should be a
defense for libel. Croswell’s conviction was upheld, but the case
led New York to change its law to permit truth as a defense.
Though not a Supreme Court case, this is a landmark freedom of
the press case.
Near v. Minnesota (1931)
Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials,
charging that they were implicated with gangsters. Minnesota officials obtained an injunction
to prevent Near from publishing his newspaper under a state law that allowed such action
against periodicals. The law provided that any person "engaged in the business" of regularly
publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and
defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined
(stopped) from further committing or maintaining the nuisance.
Question
Does the Minnesota "gag law" violate the free press provision of the First Amendment?
Decision:
The Supreme Court held that the statute authorizing the injunction was unconstitutional as
applied. History had shown that the protection against previous restraints was at the heart of
the First Amendment. The Court held that the statutory scheme constituted a prior restraint
and hence was invalid under the First Amendment. Thus the Court established as a
constitutional principle the doctrine that, with some narrow exceptions, the government could
not censor or otherwise prohibit a publication in advance, even though the communication
might be punishable after publication in a criminal or other proceeding.
NY Times v. Sullivan
(1964)
Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the
New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for
perjury in Alabama was part of a campaign to destroy King's efforts to integrate public
facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner,
filed a libel action against the newspaper and four black ministers who were listed as
endorsers of the ad, claiming that the allegations against the Montgomery police defamed
him personally. Under Alabama law, Sullivan did not have to prove that he had been
harmed; and a defense claiming that the ad was truthful was unavailable since the ad
contained factual errors. Sullivan won a $500,000 judgment.
Question
Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement
personally harmed him and dismissing the same as untruthful due to factual errors,
unconstitutionally infringe on the First Amendment's freedom of speech and freedom of
press protections?
The Court held that the First Amendment protects the publication of all statements, even
false ones, about the conduct of public officials except when statements are made with
actual malice (with knowledge that they are false or in reckless disregard of their truth or
falsity). Under this new standard, Sullivan's case collapsed.
NY Times v. US (1971)
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 President 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 Nixon administration's efforts to prevent the publication of what it termed "classified
information" violate the First Amendment?
Yes. In its per curiam opinion 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.
Branzburg v. Hayes (1972)
After observing and interviewing a number of people synthesizing and using drugs in a
two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a
Louisville newspaper. On two occasions he was called to testify before state grand juries
which were investigating drug crimes. Branzburg refused to testify and potentially disclose
the identities of his confidential sources.
Question
Is the requirement that news reporters appear and testify before state or federal grand
juries an abridgement of the freedoms of speech and press as guaranteed by the First
Amendment?
The Court found that requiring reporters to disclose confidential information to grand
juries served a "compelling" and "paramount" state interest and did not violate the First
Amendment. Justice White argued that since the case involved no government intervention
to impose prior restraint, and no command to publish sources or to disclose them
indiscriminately, there was no Constitutional violation. The fact that reporters receive
information from sources in confidence does not privilege them to withhold that information
during a government investigation; the average citizen is often forced to disclose
information received in confidence when summoned to testify in court.
Nebraska Press Assoc. v.
Stuart (1975)
• A Nebraska state trial judge, presiding over a widely publicized murder trial,
entered an order restraining members of the press from publishing or
broadcasting accounts of confessions made by the accused to the police.
The judge felt that this measure was necessary to guarantee a fair trial to
the accused.
• Question : Did the judge's order violate the First and Fourteenth
Amendments?
• Yes. The Court agreed with the trial judge that the murder case would
generate "intense and pervasive pretrial publicity." However, the unanimous
court held that the practical problems associated with implementing a prior
restraint on the press in this case would not have served the accused's
rights. Chief Justice Burger reasoned that"a whole community cannot be
restrained from discussing a subject intimately affecting life within it."
Cohen v. Cowles Media Co (1991)
Cohen was a campaign associate in the 1982 Minnesota gubernatorial race. He gave court
records concerning another party's candidate for lieutenant governor to the St. Paul Pioneer
Press and the Minneapolis Star and Tribune. Though he had received a promise of
confidentiality from the reporters, the papers identified Cohen in their stories. He was fired as a
result. Cohen sued the papers in state court, alleging a breach of contract. At trial, Cohen won
compensatory damages and the state appellate court upheld the award. But the Minnesota
Supreme Court reversed, ruling that Cohen's claim relied on state "promissory estoppel" law, a
law that essentially prevented a promisor from breaking a promise. The court ruled that the First
Amendment's free press guarantee prevented promissory estoppel from applying to the
newspapers.
Question
Does the First Amendment bar a plaintiff from recovering damages, under state promissory
estoppel law, for a newspaper's breach of a promise of confidentiality?
No. In a 5-4 opinion delivered by Justice Byron White, the Court held that the First Amendment
did not bar a promissory estoppel suit against the press. The Court first affirmed that such a
cause of action, though private, triggered the First Amendment's protection. But the Court went
on to rule that the state's promissory estoppel law was generally applicable and did not target
the press. The law's enforcement against the press thus did not require stricter scrutiny than
would its enforcement against other individuals or institutions.
SC Cases
Which case had the greatest impact? Why
do you think so?
Democracy in America
The True Smoking Gun
SUMMARY
Are the press and
politicians having the
kind of
interactions/relationship
s that the Founding
Fathers intended?