The 1st Amendment: Exploring the Freedom of the Press
Jun 11, 2024Season 3Episode 79
Ashley & Sara
What if the press wasn't free to report on government actions? Imagine a world where the government controlled the flow of information. This episode of United She Stands takes you on a journey through the essential role of freedom of the press as enshrined in the First Amendment. We kick off with a refresher on the First Amendment's five fundamental freedoms, with a spotlight on why the founders deemed the freedom of the press crucial for democracy. From the early days of newspapers to the modern digital age, learn how this clause has evolved to encompass all forms of media.
Join us as we recount the gripping Pentagon Papers case and its significant implications for press freedom, where classified Vietnam War documents leaked by Daniel Ellsberg led to a groundbreaking Supreme Court decision. Explore the distinctions between public figures and private citizens in libel cases, and the responsibilities of journalists and private citizens alike in today's media landscape. We also revisit the 1940s Hutchins Commission's call for the media's moral obligations, diving into contemporary challenges like fake news and the ongoing threats to press freedom. Tune in to understand the enduring power and responsibility of the press in safeguarding our democracy.
What if the press wasn't free to report on government actions? Imagine a world where the government controlled the flow of information. This episode of United She Stands takes you on a journey through the essential role of freedom of the press as enshrined in the First Amendment. We kick off with a refresher on the First Amendment's five fundamental freedoms, with a spotlight on why the founders deemed the freedom of the press crucial for democracy. From the early days of newspapers to the modern digital age, learn how this clause has evolved to encompass all forms of media.
Join us as we recount the gripping Pentagon Papers case and its significant implications for press freedom, where classified Vietnam War documents leaked by Daniel Ellsberg led to a groundbreaking Supreme Court decision. Explore the distinctions between public figures and private citizens in libel cases, and the responsibilities of journalists and private citizens alike in today's media landscape. We also revisit the 1940s Hutchins Commission's call for the media's moral obligations, diving into contemporary challenges like fake news and the ongoing threats to press freedom. Tune in to understand the enduring power and responsibility of the press in safeguarding our democracy.
If you purchase from any links to resources or products, the show may make a small commission.
Ashley:
Yeah, this viewpoint is the idea that the press is so vitally important to checking our government. Throw it back to the beginning of the episode when we talked about why the founders even included this clause. We, the people, know what the government is doing because reporters ask questions, they investigate, they track bills, etc. Ultimately, without reporters, who would be keeping track of what the government is doing? Who would tell the people about it? About it? Welcome back to the United she Stands podcast, the show that brings kindness and women into politics.
Sara:
I'm Ashley and I'm Sarah, and we're two women from Ohio who are here to become more educated about American politics and build a community so we can all get involved and make an impact together.
Ashley:
We hope we'll inspire and empower you along the way. Hello and welcome back to another episode of the United she Stands podcast. We have yet another episode for you today on the First Amendment, specifically all about freedom of the press. We have already covered other First Amendment freedoms religion and speech in prior episodes, so if you missed those, go back and go ahead and give them a listen. But before we dive into it today, sarah, what are we drinking?
Sara:
Well, a little behind the scenes info for y'all. It is 10 am on a Saturday morning, so we are actually drinking some nice iced vanilla lattes. We are, but I mean, I wouldn't be opposed to a beer right now, but this is my first coffee of the day, so that needs to happen first. Okay, so let's start with a bit of a recap, in case you missed the previous episodes on the First Amendment or in case you just need a refresher, because there's a lot of information. So bear with us for the next few minutes if you've already heard this before and remember everything we already told you.
Sara:
So the First Amendment was ratified in 1791 as part of the Bill of Rights, which, as a reminder, is the first 10 amendments in our US Constitution. The First Amendment states 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. That one sentence right there gives us five freedoms Religion, speech, press, peaceable assembly and petition. Even though this is just one sentence, there's so much that goes into each clause of that sentence. So today we're here to specifically break down the freedom of the press clause for you and to talk about the interpretation from the courts of this amendment over the years.
Ashley:
But before we do that, we did come up with a fun mnemonic phrase in our very first First Amendment episode on the freedom of religion, so that we could remember and help you, the listener, remember, the five freedoms we have protected by the First Amendment. Okay so, sarah Popquiz, can you name the five freedoms without looking at our document, or can you remember the mnemonic phrase we made up?
Sara:
I think I can remember the phrase Raise a stein pour a pint. So religion speech. Press assembly petition.
Ashley:
Yeah, she didn't look guys. We're in the same room today. Sarah did not look at the screen.
Sara:
I'm not a cheater.
Ashley:
Yeah. So if you missed it before, raise steins pour a pint. I mean, come on, that's pretty good, that is so good.
Sara:
I'm like I'm still just beyond impressed by that, yeah.
Ashley:
So you can always remember your five freedoms. All right, so moving on and getting into some new content for those who did catch the past episodes, as we said, today we're going to break down just one of those five freedoms from the First Amendment, and that is the freedom of the press. There's so much that goes into interpreting our laws as we kind of know by now, and the press clause from the First Amendment is really no exception, so let's dive in, all right.
Sara:
So, specifically in the First Amendment there's this tiny little clause that comes after the religion and it's called the First Amendment and it's a little bit of a different thing. It's a little speech clauses and its states or of the press. So Congress shall make no law abridging the press. And that tiny clause. Well, it's a really important protection for our democracy. But, like many things in our constitution, it's a bit vague and leaves room for interpretation. So let's get into it, shall we.
Ashley:
We shall. The First Amendment guarantees a free press, but what does that really mean? Well, basically, it's the right to gather information and report news or circulate opinions without censorship from the government, and we really need to start back at why the founders included this clause specifically in the First Amendment. The founders realized that the government basically needed a watchdog, and in this case, that watchdog was a free press with protections from the Constitution. They believed a free press to be one of the components essential to creating a free, democratic nation. The idea was that the media could have more autonomy to write things about people in the government that those people in the government might not like, but ultimately, the press would be protected. This would enable the press to say what needed to be said to ensure the public had information that it might need to make informed decisions.
Sara:
At the time the First Amendment was ratified in 1791, the Free Press Clause addressed newspapers and there were really no limits on what the press could say. The Free Press Clause today applies to all forms of news gathering and reporting, no matter the medium. So television, radio and online journalists are all protected, like many things in our Constitution, the meaning of the Free Press Clause, of the First Amendment that we know today, largely emerged from pivotal US Supreme Court decisions throughout the 20th century. Like we discussed in the Freedom of Speech episode, the First Amendment wasn't thought to apply to the states until the 1925 case Gitlow v New York, in which the US Supreme Court found that the freedoms of press and speech applied to the states through the 14th Amendment.
Ashley:
So we're going to walk through a few additional key decisions here. Some of these we'll kind of briefly touch on and some we're going to give a bit more attention to. The first case is near v, Minnesota in 1931. This case established a judicial precedent for the no prior restraint doctrine. Prior restraint is a form of censorship that allows the government to review the content of printed materials and prevent their publication. So this case ensures you are free to publish, print etc. Without government review or approval.
Sara:
The second case is Grishin v American Press Co in 1936. In this case, the court struck down a license tax that applied differently to newspapers with large circulation in Louisiana. Basically, a law was passed to tax the most distributed papers differently, and these papers one specifically had been criticizing politicians. The court agreed that newspapers should not be immune from any of the ordinary forms of taxation for support of the government, but they then concluded that the tax in this case interfered with the role of the press as a vital source of public information.
Ashley:
The third case, and one we're going to go into a bit more detail on, is New York Times co v Sullivan in 1964. In this case, the Supreme Court reversed a libel damages judgment against the New York Times. The decision established the important principle that the First Amendment guarantees of freedom of speech and press may protect libelous words about a public official in order to foster vigorous debate about government and public affairs. This landmark decision constitutionalized libel law and arguably saved the civil rights movement. So let's dive a bit deeper.
Sara:
Let's start with defining libel, because it's about to come up. Quite often, Libel is a published false statement that is damaging to a person's reputation. So back to the case now. New York Times co v Sullivan began as a lawsuit against the newspaper for mistakes in a full-page civil rights fundraising editorial advertisement in 1960, and it was titled Heed their Rising Voices, the advertisement which protested the way Alabama law enforcement treated Reverend Martin Luther King Jr. The lawsuit was filed by LB Sullivan, an elected city commissioner in Montgomery, Alabama, whose duties included supervision of the local police. Under Alabama law, Sullivan only needed to prove that there were mistakes in the ad and that they likely harmed his reputation. A jury awarded him $500,000 in damages, which was an enormous sum at the time. And, fun fact, we used an inflation calculator for this $500,000 in damages back then and what it would be today just a little over $5 million. So yeah, that was a lot of money at the time.
Ashley:
All right. So the Supreme Court unanimously reversed and dismissed the damage award. Writing for the majority Justin William J Brennan Jr. Opinion that debate on public issues should be uninhibited, robust and wide open, and said that vehement criticism and even mistakes were part of the price a democratic society must pay for freedom. And if you're wondering what the advertisement had gotten wrong, it incorrectly stated the number of times Martin Luther King Jr had been arrested in Alabama, which was four times instead of seven, as well as some of the details of the police actions at Alabama State College.
Sara:
Yeah, I'd say there's a difference between four and seven times Like OK. To protect open discourse, the court adopted the actual malice test, meaning that no public official could win damages for libel without proving that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. The court intended for this to be a very high standard, one that public officials would have a hard time satisfying, and one that, if were found true, was because conduct by the news media went beyond just negligence or carelessness.
Ashley:
After setting the new high standard, the court then established another important principle by immediately applying the new test to the facts of the case and declaring that there was insufficient evidence of actual malice. Usually, when the Supreme Court announces a new legal rule, the justices will send a case back to the lower courts to apply the new rule to the particular facts of that case. The court established the principle of de novo review for free speech cases, meaning that the Supreme Court will use its new rule to determine itself how legal principles apply to the facts of the case, versus letting a lower court decide.
Sara:
Prior to Sullivan, libel and defamation were entirely matters of state law, and the rules on when individuals could recover damages for injuries to their reputations varied widely, aka state by state. I'm sure we're surprised Sullivan changed all this in 1964. The Supreme Court transformed the field of libel law from one governed by the laws of the states to one determined by the First Amendment.
Ashley:
In subsequent rulings, the court vastly expanded the protection for the news media to apply not just to lawsuits by public officials but also to claims by public figures, meaning people in the news or public eye. At the end of the day, all this to say, the media can report false information as long as the information was not distributed with actual malice, aka false information being reported out has to be an honest mistake or, essentially, when it was reported there was no intent to libel, meaning there was no intent to use a false statement to damage someone's reputation.
Sara:
Now, before moving on from this case, let's talk about the why behind the ruling a bit more specifically the intent piece. Basically, the Supreme Court recognized here that the press isn't always going to get it right and said that's okay. You could ask why are they giving this okay, though?
Ashley:
Well, some of this recognition from the court is that with the news you're trying to get the information as correctly as you can in a very tight time frame, and the courts recognize this. In 1964, when this ruling was made, they were putting out an addition, for example, you know, the next morning, so if something came up that day, journalists maybe had a couple hours in some situations to get it published. Fast forward to today and oftentimes journalists, reporters, people, have even less time sometimes 15 minutes to report news and the odds are that they just might not always get it right, especially breaking news and as things are developing. So the courts were trying to recognize that the time pressure inherent in reporting the news may mean that sometimes mistakes will get made, but unless they're made with intent or with malice, it doesn't rise to the level of libel.
Sara:
Okay, that was a big one right there, but now we're moving on to the Richmond Newspapers Incorporated v Virginia from 1980. In this case, the court affirmed a First Amendment right for both the public and the press to attend criminal trials. After a series of mistrials, a criminal defendant on trial for murder in Virginia had requested and the prosecution had not opposed closing the courtroom doors to the public, but the closure was opposed by reporters who argued that the public had a First Amendment right to attend criminal trials. The court concluded that, absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.
Ashley:
And the last case we're going to talk about today is New York Times Code v United States in 1971. And this is a big one, folks. Maybe you've heard of it, as it's also known as the Pentagon Papers case. In this case, the court reiterated the strong presumption against prior restraint of publication and rejected the Nixon's administration attempt to block the New York Times, the Washington Post and other papers from printing largely historical documents about US's involvement in Vietnam, even though the government cited national security concerns. So let's get into the details.
Sara:
All right. So for those who don't know, here's the background. In 1967, the then Secretary of Defense, Robert McNamara, commissioned a secret government study on American involvement in Vietnam. When completed in 1968, the project had produced 47 volumes containing more than 7,000 pages. The work was labeled classified and only 15 copies were made. In early 1971, Daniel Ellsberg, a Rand Corporation employee who had worked on the project, secretly made copies of the documents and passed them to reporters for the New York Times. On June 13, 1971, after several months of review, the Times began to publish these so-called Pentagon Papers. After the first three installments were published, the Nixon administration, citing national security concerns, obtained a restraining order barring further publication of the papers.
Ashley:
When the Second Circuit Court of Appeals affirmed the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day.
Sara:
Wow, they cited prior cases, noting that any system of prior restraints comes to this court bearing a heavy presumption against its constitutional validity and that the government thus carries a heavy burden of showing justification for the imposition of such a restraint. In this case, the government had failed to carry that burden and just to tie it back. For you, prior restraint was the doctrine we talked about in the near v Minnesota case.
Ashley:
While the court did side with the press and this case is regarded as a win for first amendment rights, there was a lot of ambiguity on why the court ruled the way they did. When addressing the question of why the government had failed to carry its burden aka just if that doesn't make any sense, it means right. Their burden was proving that this was a national security concern.
Sara:
The court's majority splintered into six different concurring opinions with this ambiguity, many first amendment advocates had criticized the decision because, although this case supports, the majority splintered into six different concurring opinions. With this ambiguity, many First Amendment advocates had criticized the decision because, although this case supports the right to publish and in this case that's the Pentagon Papers, they argue its impact is diluted by the failure of the court to produce a clearly reasoned majority opinion. The court's fractured majority fails to say prior restraint may never be imposed, may be imposed only if the threat to national security can be proven to be real, serious and immediate, or may be imposed if Congress provides sufficient, clear authorization and guidelines.
Ashley:
All of this to say, the decision is far from being a clear declaration of support for a free press, because it leaves open the possibility of government censorship without specifying the conditions under which the First Amendment might permit it. And just to drive this point home in case it wasn't clear, the courts did not say that the government couldn't limit the press for national security reasons. It just says, in this case they did not meet the burden of proof required to do so, Meaning if they could prove national security would be threatened. In certain scenarios the government could limit the press.
Sara:
And that wraps up the court cases we're going to discuss specifically, but let's dive into what some of this means for private citizens. So if you remember in Sullivan, the case that established actual malice, this case dealt with public figures and the people who place themselves in the public eye. But what does that mean for private citizens? What has the court said about whether the press can pry into a private life?
Ashley:
Well, the courts have recognized several different types or groups of people when it comes to libel cases, and one is the public figure that we've talked about, and those are people like politicians the president of the United States, my girl, tay Tay Swift.
Sara:
Who should be the president of the United States?
Ashley:
Yeah, can we make that a thing For real though? Anyway, these are the people that you just recognize, right? They're public, they're in the public eye, and those people have to hit the actual malice standard, like we discussed. But then there are private figures, like the average citizen. Kind of a lousy job of reporting the story. Did they not do their due diligence to ensure accuracy, etc. In that case, if you're a private citizen the information was false, it did damage to your reputation and the press was negligent then you're probably going to be successful in a libel case.
Sara:
Now let's talk specifically about the press First. What exactly are we talking about when we say the press? We took this definition from a Civics 101 episode on press freedom because it was the best definition we could find. Hannah from that show explains the press as being hard to define these days, in part because anyone can publish or broadcast anything online. But ideally, the press are people who seek out, research and verify the truth and then share that truth with others. So think people who work for newspapers, radio stations, magazines, television networks, people who learn as much as possible about a subject and then pass all that information on to news consumers. News consumers in this case are readers, listeners, etc. So specifically for us in regards to this topic, it's the American people.
Ashley:
And something here to note that I think everyone should know is that you are able to publish, and probably do publish regularly. So you, a normal private citizen, in some ways act as and can be held responsible for being quote, unquote the press, your Facebook, instagram, tiktok, youtube, whatever social media account you prefer that is a platform where you are publishing something. This is why the press is so hard to define these days. So if you make a post with false information that causes damage to someone's reputation, you can be held liable for it. That's right. You, the poster, not the social media platform, would be the one that's held liable. But you're glad you listened to this episode so far, yeah, yeah, we're big PSA for everyone.
Ashley:
Yeah, no making up rumors about your neighbors. No blasting someone on social media with fake information. Okay, guys.
Sara:
Yep, okay, great advice, ash, thank you. So back to the press itself. So again, in this case that's meaning the actual news organizations and journalists. We just want to briefly touch on the fact that we talked about the rights the First Amendment protects for them and even gave you a definition of the press, but we did not talk about the obligation and responsibility they have to our society To do this. Let's go back to the Pentagon Papers case for a minute. I know we talked about how this ruling was pretty ambiguous, but Justice Hugo L Black's opinion argued that the press was to serve the governed, not the governors. The government's power to censor the press was abolished so that the press would remain forever free to censor the government. The press was protected so that it could bear the secrets of the government and inform the people, and this viewpoint is important.
Ashley:
Yeah, this viewpoint is the idea that the press is so vitally important to checking our government. Throw it back to the beginning of the episode when we talked about why the founders even included this clause. We, the people, know what the government is doing because reporters ask questions, they investigate, they track bills, etc. Ultimately, without reporters, they investigate, they track bills, etc. Ultimately, without reporters, who would be keeping track of what the government is doing? Who would tell the people about it? When you look at it like that, it's pretty easy to see the responsibility they have. We, as a free society, depend on the press and we have this idea that they have this responsibility to our society and this leads us to the Hutchins Commission, whose official name was the Commission of Freedom of the Press.
Sara:
To talk about this commission, we need to go back a bit in our history, to the 1940s, and set the stage. This commission met in the 1940s, when fascism was spreading around the world and folks were worried about the threat coming here to the US. This was also the time just after Franklin Roosevelt's death. Large and powerful publishers were unpopular with the public, and the public had a high degree of suspicions about their motivations and objectives. This was a time when the press had mushroomed into an unwieldy and powerful entity, and criticism of the power the press yielded was widespread. Critics argued that the media had monopolistic tendencies, that corporate owners were not concerned with the rights or interests of those unlike themselves, and that commercialization produced a corrupted culture as well as dangerously selfish politics. Does this sound?
Ashley:
familiar, oh yeah, pretty relatable to today's press, yeah, mm-hmm. Well, with all this turmoil, the commission came to its conclusion in its final report called A Free and Responsible Press, which was published in 1947. At a high level, it says that the press plays an important role in the development and stability of modern society and, as such, it is imperative that a commitment of social responsibility be imposed on mass media. According to the social responsibility theory that came out of this, the press has a moral obligation to consider the overall needs of society when making journalistic decisions in order to produce the greatest good. Though there had been journalism codes of ethics for decades, the commission's report was considered landmarked by some scholars. They believed it was a pivotal reassertion of modern media's role in a democratic society.
Sara:
This social responsibility theory proposes that the media take it upon themselves to elevate society's standards, providing citizens with the information they need to govern themselves. It is in the best interest of the media to do this. If they do not, social theorists warn, the public will demand that the government regulate the media. So, with a system built on checks and balances, I feel like I got to ask who gets to check the media. Are they too powerful? Well, we don't really have an answer for that. Awesome, and what does that mean in an era of widespread protest, fake news and threats we're seeing to press freedom, like journalists being threatened, arrested or injured while reporting.
Ashley:
Well, Sarah, we don't have an answer for that either, great great. What we can tell you is that the framers made the press powerful by giving it the freedom to print without requiring permission, and the press and the courts, over time, made the press even more powerful. Because of all this, their power grew and ultimately, so did their responsibility.
Sara:
And we'll leave you guys with that for today. We hope you better understand both the rights protected by the First Amendment in relation to the press, as well as how vitally important they are to our democracy and the amount of responsibility they have to our society. If you enjoyed this episode or found it valuable, we would so love and appreciate if you shared this with a friend who you think would also enjoy it and, if you're not already, be sure to subscribe so you never miss an episode. Thank you so so much for tuning in and we will absolutely positively catch you next time. Thanks See, ya Bye. Thanks for joining us for today's episode. We really appreciate the support.
Sara:
We would also really appreciate it if you hit the follow button and share this episode with anyone you think would enjoy it, and we'd like to thank Kevin Tanner, who edited this episode. If you're interested in learning more about him and his services, his website and Instagram are in the show notes With that we'll see you next week or if the press oh sorry, yep that makes a lot more sense in my head.
Ashley:
I'm like my probably just makes more sense, or uh or uh, but yes, no, that's okay.
Sara:
And fun fact, we use an inflation calendar, so that 500,000. Calculator, what did I say? Calendar, I love when.
Ashley:
I don't know what I said. That's like the worst part, because I do it too. I like where you're reading and I feel like your brain just like fills in a lot. Yes, oh my gosh.
Sara:
I know An it too. I like where you're reading and I feel like your brain just like fills in a lot. Yes, oh my gosh, I know.
Ashley:
An inflation calendar, but I knew you would like this part because I was like I did like that money math for Sarah.
Sara:
Literally when I was reading it was an enormous sum. I was like I wonder what it would be this time. Okay, well, this commission meant.
Ashley:
That's of that. This commission met meant, that's it. They got together.
