Freedom of Press
“The press was to serve the governed,
not the governors.”
– Justice Black (NYTimes vs. U.S.)
What does this statement mean?
Hustler Magazine v. Falwell (1988)
The State's interest in protecting public figures from
emotional distress is not enough to deny First Amendment
protection to speech that is offensive and is intended to inflict
emotional injury when that speech could not reasonably have
been interpreted as stating actual facts about the public figure
involved. Here it is clear that Falwell is a "public figure" for
purposes of First Amendment law. The jury found against
Falwell on his libel claim when it decided that the Hustler ad
parody could not "reasonably be understood as describing
actual facts about Falwell or actual events in which he
participated.” The Supreme Court agrees and sides with
Hustler.
Court Considerations/Questions
for Free Press:
• Public figure or official?
• Intentional malice to ruin reputation?
• Presented as truth?
Supreme Court Decisions – free press standards
(A) New York Times v. US 1971 The Pentagon Papers
The Court held that the government had not proven
that publishing the Pentagon Papers would jeopardize
national security, thus not overcoming the “heavy
presumption” against prior restraints. Wrote Justice
Hugo Black: “In the First Amendment, the Founders
gave the free press and protection it must have to
fulfill its essential role in our democracy. The press
was to serve the governed, not the governors.”
When can prior restraint be used?
• Circumstances of protection of national
security.
• National security in conjunction with times of
war.
There is a presumption against use of prior
restraint!
(B) Nebraska Press Association v. Stuart (1976)
The Supreme Court held that defendants’ right to
a fair trial does not justify prior restraint. The
Supreme Court struck down the gag order, noting
that “a prior restraint on expression comes to this
Court with a ‘heavy presumption’ against its
constitutionality.” Judges may take certain
measures to ensure a fair trial, such as keeping
the jury isolation or changing the location of the
trial, but they are not allowed to use prior
restraints on the media.
(C) New York Times v. Sullivan (1946), the Supreme Court made
libel harder to prove when public officials are involved. The
Supreme Court unanimously overturned the libel judgment. The
Court held that in cases where a public official was criticized for
official conduct, errors of fact alone were not enough to prove
libel, nor was carelessness in printing the error. To win a libel
suit, a public official had to prove the error was made with
actual malice, “that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.” Actual malice
is very difficult to prove in libel cases. In later decisions, the
Court extended the actual malice standard in libel cases to public
figures, as well as public officials.
(3) Red Lion Broadcasting v. FCC (1969), the Court said “of all forms of
communication, it is broadcasting that has received the most limited First
Amendment protection.”
The Court upheld the power of the FCC to regulate broadcasting more than
newspapers and other public property that may be controlled by the government.
While the First Amendment applies to broadcasting, the Court held, “it is the
right of the viewers and listeners, not the right of the broadcasters, which is
paramount (most important).” The courts reasoned that the scarcity of the
broadcast spectrum, which limited the opportunity for access to the airwaves,
created a need for the Doctrine.
Broadcasting = considered press and gets protection! BUT FCC has the right to
regulate, and they do so for the people – according to social expectations.
Currently: The proliferation of cable television, multiple channels within cable,
public-access channels, and the Internet has eroded this argument, since there
are plenty of places for ordinary individuals to make public comments on
controversial issues at low or no cost. The FCC decided to eliminate the Doctrine
in 1987, and in August 2011 the FCC formally removed the language that
implemented the Doctrine.
HUSTLER MAGAZINE v. FALWELL (1988)
Falwell, a nationally known minister and commentator on politics and
public affairs, filed a suit in Federal District Court against Hustler
magazine, a nationally circulated magazine and its publisher, to recover
damages for libel and intentional infliction of emotional distress arising
from the publication of an advertisement "parody" which showed
Falwell as having engaged in a drunken incestuous behavior with his
mother in an outhouse. The jury found against Falwell on the libel
claim, specifically finding that the parody could not "reasonably be
understood as describing actual facts . . . or events," but ruled in his
favor on the emotional distress claim, stating that he should be
awarded compensatory and punitive damages. The Court of Appeals
affirmed, rejecting petitioners' argument that the "actual malice"
standard of New York Times Co. v. Sullivan, must be met before Falwell
can recover for emotional distress.
Should the Court give Falwell damages, or is the cartoon protected
under the free press clause of the First Amendment?
Hustler and Flynt vs. Falwell
Holding: In order to protect the free flow of ideas and opinions on matters of
public interest and concern, the First and Fourteenth Amendments prohibit
public figures and public officials from recovering damages for the tort of
intentional infliction of emotional distress by reason of the publication of a
caricature such as the ad parody at issue without showing in addition that the
publication contains a false statement of fact which was made with "actual
malice," i.e., with knowledge that the statement was false or with reckless
disregard as to whether or not it was true. The State's interest in protecting
public figures from emotional distress is not sufficient to deny First
Amendment protection to speech that is patently offensive and is intended to
inflict emotional injury when that speech could not reasonably have been
interpreted as stating actual facts about the public figure involved. Here,
respondent is clearly a "public figure" for First Amendment purposes, and the
lower courts' finding that the ad parody was not reasonably believable must be
accepted.