The freedom of the press is one of the most important civil liberties in the United States. A free press informs the public about government actions, makes the government aware of the public’s interests and needs, and allows for sharing of ideas and information. Freedom of the press was first established in the First Amendment and has since grown in scope. What safeguards does the U.S. have to protect this freedom? How has the freedom of the press changed over time?
How is freedom of the press protected in the Constitution?
Freedom of the press is guaranteed under the First Amendment. The Constitution states that “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.” The First Amendment also applies to the state governments through the 14th Amendment.
Although the First Amendment only references Congress, the Supreme Court has clarified that the scope of protection for the press from undue censorship includes any government agency, whether at the local, state, or federal level. This protection allows publishers to distribute information or opinions without government interference, prior constraint, or prosecution. While all branches have a hand in protecting the freedom of the press, the Supreme Court, through the power of judicial review, decides when the freedom of the press is being infringed.
Why is press freedom important?
The Founding Fathers believed the right to criticize the government and vote out incapable leaders were essential to self-governance. To exercise these rights, the public must have access to accurate and diverse sources of information. In this way, a free press is vital to holding elected officials and government institutions accountable. Additionally, freedom of the press makes elected officials aware of the public’s preferences on different issues.
Freedom of the press is also vital to setting the political agenda in a country. The media can educate citizens about new political topics and bring said issues to the forefront of the political agenda. A free press can also help strengthen confidence in government transparency and trust in government.
What are the potential drawbacks for society having a free press, and how is it protected?
An uncensored media can encourage the spread of factually inaccurate, intentionally deceptive, incomplete, one-sided, and otherwise dangerous information that could harm the public interest. For example, during the COVID-19 pandemic, information regarding the virus’s origin, motivations behind the public health response, scientific data about the virus and its spread, and vaccine safety were widely disseminated across social media platforms, as well as through books and other published material available for purchase through online sellers.
The government’s discretionary role can be complex at times, either in its effort to encourage greater visibility for certain sources of information deemed relevant and in the public’s best interest while censoring, suppressing, or otherwise limiting information due to the perceived potential of spreading misinformation. The challenge, like any decision involving a complex set of problems that encompass a varied degree of information, data, and scientific discrepancies and beliefs, is the government’s role in determining whether such information is, in fact, accurate or otherwise relevant and in the best interest of the public, and protected under free speech.
As the government’s responsibility comes with a certain level of subjectivity, in some instances, the process in which information and data were considered protected under free speech caused harm, and in other instances, content that was considered misinformation but later determined to be plausible or relevant to the safeguard of the public’s overall health and well-being was suppressed. Both cases can ignite distrust in the government and public health entities. Such distrust can inhibit the government’s ability to serve the public, as well-intentioned policies are more likely to face backlash and resistance in the future.
Similarly, a free press can harm the security of the United States by publishing secret information about military operations or diplomatic efforts. While the government can prosecute reporters and editors for revealing secrets, these prosecutions are extremely rare, as they open the government to claims that it is simply trying to prevent the disclosure of embarrassing information.
What exceptions, if any, exist to this freedom?
Freedom of the press is not unrestricted. The Supreme Court has agreed that, in certain situations, the government is permitted to restrict the freedom of the press. Current law prohibits the publication of libel, slander, obscenity, pornography, classified information, fighting words, and trade secrets.
For example, Dominion Voting Systems recently sued Fox News for defamation. Dominion’s technology is used to tabulate votes in many state elections. In their case, Dominion claimed that Fox News made false statements on air about Dominion engaging in election interference. Ultimately, Fox News settled the lawsuit, paying Dominion $787.5 million and admitting to making false statements about Dominion on air.
Prior restraint is when the government prohibits the media from publishing secret information. In deciding cases of prior restraint, the courts must consider when the importance of security outweighs the freedom of the press and the right for the public to be informed. The government must demonstrate a compelling state interest whenever using prior restraint. In most instances, the courts have determined prior restraint to be unconstitutional. In the 1971 case of New York Times v US, the Supreme Court allowed the publication of the Pentagon Papers, documents that contained top-secret information about the Vietnam War.
The publication of obscene material and pornography are other areas in which there are ill-defined limitations on the press. The Supreme Court uses a test (the Miller Test) drawn from the case of Miller v California in 1973 to decide whether something is obscene and can be restricted. The three requirements of the Miller Test are:
- Whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest.
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
That test has been used to restrict the press in many cases. For example, the Federal Communications Commission (FCC) can regulate language on television.
How has the exercise of press freedom changed over time?
One of the first challenges to freedom of the press was the passage of the Alien and Sedition Acts of 1798, making it illegal to print or say anything malicious about the government. This legislation was unpopular and expired before the courts could rule on the constitutionality of the action.
Issues related to freedom of the press did not come to prominence again until the 20th century. The Espionage Act of 1917 significantly affected freedom of the press. This legislation was intended to prevent the transfer of sensitive information regarding military and national defense secrets to enemy nations. However, the Act was used to target political opponents of President Wilson, who opposed the war, preventing 15 antiwar publications from being distributed via mail. The list of prohibited publications included Masses magazine, a prominent socialist, antiwar publication at the time.
Subsequently, federal courts have established stronger protections for the media.
- In 1927, the Supreme Court addressed the issue of making false claims in Whitney v California. Justice Brandeis established the counter-speech doctrine, arguing that the correct response to “false speech” was to have “more speech,” meaning the spread of correct information rather than government prohibitions.
- In the 1964 New York Times v. Sullivan case, the Supreme Court held that one cannot be sued for defamation or libel by a public government official unless it can be demonstrated that the author knew the claims were false or in reckless disregard for the truth. This ruling solidified the ability of citizens to criticize government officials.
- In the 1971 New York Times v. United States case, the court ruled that the government could not use prior restraint to prevent the publication of the Pentagon Papers, which contained classified military information.
- Section 230 of the Communications Decency Act of 1996 protects social media companies from being found liable for publishing content posted by users.
Further Reading
Graber, Doris A. (2017). “Freedom of the Press: Theories and Realities,” Chapter 17 in The Oxford Handbook of Political Communication, edited by Kate Kenski and Kathleen Hall Jameson. Oxford: Oxford University Press.
The Free Speech Center. (n.d.). First Amendment Timeline. https://www.mtsu.edu/first-amendment/page/first-amendment-timeline
Gisondi M, Barber R, Faust J, Raja A, Strehlow M, Westafer L, Gottlieb M. (2022). A Deadly Infodemic: Social Media and the Power of COVID-19 Misinformation J Med Internet Research, 24(2). https://www.jmir.org/2022/2/e35552.
Sources
How is freedom of the press protected in the Constitution?
The Free Speech Center. (n.d.). First Amendment Timeline. https://www.mtsu.edu/first-amendment/page/first-amendment-timeline
Constitution Annotated. (n.d.). Overview of freedom of the Press. https://constitution.congress.gov/browse/essay/amdt1-9-1/ALDE_00000395/
Who is responsible for protecting freedom of the press?
The Free Speech Center. (n.d.). First Amendment Timeline. https://www.mtsu.edu/first-amendment/page/first-amendment-timeline
Graber, Doris A. (2017). “Freedom of the Press: Theories and Realities,” Chapter 17 in The Oxford Handbook of Political Communication, edited by Kate Kenski and Kathleen Hall Jameson. Oxford: Oxford University Press.
Why is freedom of the press important?
National Constitution Center. (n.d.). Social Contracts. http://tinyurl.com/5ycztwhw, accessed 2/7/24.
Pomerance, M. (1976). The United States and Self-Determination: Perspectives on the Wilsonian Conception. The American Journal of International Law, 70(1), 2. https://doi.org/10.2307/2200560
Freedom House. (n.d.). Media Freedom. https://freedomhouse.org/issues/media-freedom
McCombs, M. E., & Shaw, D. L. (1972). The Agenda-Setting Function of Mass Media. The Public Opinion Quarterly, 36(2), 176–187. http://www.jstor.org/stable/2747787
What are the potential drawbacks for society having a free press, and how is it protected?
Graber, Doris A. (2017). “Freedom of the Press: Theories and Realities,” Chapter 17 in The Oxford Handbook of Political Communication, edited by Kate Kenski and Kathleen Hall Jameson. Oxford: Oxford University Press.
Gisondi M, Barber R, Faust J, Raja A, Strehlow M, Westafer L, Gottlieb M. (2022). A Deadly Infodemic: Social Media and the Power of COVID-19 Misinformation J Med Internet Research, 24(2). https://www.jmir.org/2022/2/e35552.
What exceptions, if any, exist to this freedom?
Baracskay, D. (n.d.). Prior Restraint. Free Speech Center at Middle Tennessee State University. https://www.mtsu.edu/first-amendment/article/1009/prior-restraint
Hudson, D. (n.d.). Miller Test. The First Amendment Encyclopedia, Middle Tennessee State University. https://www.mtsu.edu/first-amendment/article/1585/miller-test
Cornell Law Legal Information Institute. (n.d.). Prior Restraint. https://www.law.cornell.edu/wex/prior_restraint
How has the exercise of this freedom changed over time?
Engelman, Ralph and Carey Shenkman. (2022). A Century of Repression: The Espionage Act and Freedom of the Press. University of Illinois Press: Urbana.
Smith, Z. M. (2020, August 1). Burnt by the Digital Sun: How the Information Environment is Testing the Mettle of Liberal Democracies. Center for Strategic and International studies. http://www.jstor.org/stable/resrep25686, accessed 06/20/2023.
Hall, K. L. (1995). Dignity, Honor, and Civility: New York Times v. “Sullivan.” OAH Magazine of History, 9(2), 33–36. http://www.jstor.org/stable/25163013
The Free Speech Center. (n.d.). First Amendment Timeline. https://www.mtsu.edu/first-amendment/page/first-amendment-timeline
Goodman, E. P., & Whittington, R. (2019). Section 230 of the Communications Decency Act and the Future of Online Speech. German Marshall Fund of the United States. http://www.jstor.org/stable/resrep21228
Published: 3/5/24
Contributors
Zul Norin (Intern) is a senior at Vanderbilt University majoring in Economics and is expected to graduate in May 2024.
Mary Stafford is majoring in Public Policy Analysis and pursuing a certificate in Public and Civic Engagement at Indiana University. In addition to her role at Policy vs Politics, she serves on the board of directors for Monroe County Court-appointed Special Advocates and is in the process of applying to law school.
Griffin Reid is a graduate student in the Department of Political Science at Indiana University and holds a Masters in Political Science from Indiana University – Indianapolis. His research is in American politics, legislative institutions, and electoral behavior. He is currently Press Secretary for the Indiana Republican Party.
Cassandra Kathri (Subject Matter Expert) is Professor of Political Science at Lone Star College in Houston, Texas. She received her PhD from the University of Houston. Her research interests are in American politics, especially foreign policy.
Dr. Nick Clark (Content Lead) is Professor of Political Science at Susquehanna University, where he is also Department Head in Political Science and Director of the Public Policy Program and the Innovation Center. He received his Ph.D. from Indiana University and researches political institutions, European politics, and the politics of economic policy.
Dr. William Bianco (Research Director) received his PhD in Political Science from the University of Rochester. He is Professor of Political Science and Director of the Indiana Political Analytics Workshop at Indiana University. His current research is on representation, political identities, and the politics of scientific research.