Our next article will be a debate about how free the press is and how free it should be. However, before that debate, you should know what the Supreme Court has said about the freedom of the press. This knowledge will help shape your opinions. The purpose of this article is to help you understand some of the opinions from the Supreme Court about the freedom of the press.
General Legal Terminology
Facts – References the background behind the case.
Holding – The final judicial decision regarding a case.
Opinion – The reasoning behind the holding.
Applicable Legal Terminology
Prior Restraint – Government review and censorship of press material before publishment.
Near v. Minnesota
In 1925, Minnesota passed a law known as the Minnesota Gag Law. The law provided for “the abatement, as a public nuisance, of a ‘malicious, scandalous, and defamatory newspaper, magazine, or other periodical.’” In other words, a judge could restrict the publishment of an article that seemed offensive.
The Saturday Press was reported to a judge as violating the law. The publication, edited by Jay Near, was committed to exposing corruption, bribery, gambling, and more in Minneapolis. However, the publication included poor journalism and quickly offended several people. Many racist and anti-Semitic attitudes were also exhibited in the publication.
Based on this history of the Saturday Press, the judge issued a temporary restraining order that prohibited the sale of printed and future editions.
Believing his First Amendment rights were violated, Near challenged the Minnesota law.
The Minnesota statute is an infringement on the liberty of the press.
Chief Justice Hughes handed down the opinion of the court. Remarkably, this was the first case of censorship in more than 150 years of the country functioning under the Constitution. Justice Hughes noted the importance of this case.
From the start, he says that this is not an instance of punishment, but suppression. This suppression is equal to censorship. Additionally, censorship infringes on the liberty of the press. He also states how the liberty of the press is essential for a free nation. Thus, this method of prior restraint cannot be allowed.
However, there are three exceptions to prior restraint.
- During times of war, Congress can limit publications that seek to obstruct recruiting efforts.
- Congress can regulate obscene material in publications.
- Congress can censor material if the words would incite acts of violence.
The main takeaway from this case is that the government cannot put prior restraints on the publication of controversial material. This principle remains true even if the content is defamatory or offensive. Since this is the first case about censoring material, the courts were clear in stating their position.
However, they did provide the exceptions cited above of when censorship may be allowed.
Hazlewood School District v. Kuhlmeier
In the Hazlewood School District, several students ran a school newspaper called the Spectrum. The staff of the paper planned to publish articles about divorce and teen pregnancy. However, the principal thought the privacy of several students would be violated. Therefore, he removed two pages that were to be published.
Thinking this censorship seemed similar to that in Near, the students hired a lawyer to take the case to court. The federal district court ruled in favor of the principal. However, the court of appeals found the censorship had violated the students’ First Amendment rights. They argued the paper was a public forum and was not to be restricted unless if it interfered with school work.
The Supreme Court overruled the court of appeals and held that school district authorities could censor school publications.
The first question the court had to answer was, “is this publication a public forum?” The answer, no. Justice White reasoned that there was no clear evidence the Spectrum was intended to be used solely as a public forum. Instead, several school policies described how the newspaper was intended to be used as an education tool. Students could use the paper to practice journalistic procedures. Therefore, the court ruled that the school had some authority over the editorial process.
The court next turned to examine the difference between this case and the outcome in Des Moines v. Tinker. In Tinker, the court found that the students could maintain free speech. Here, the rights of the students were restricted. Why? Well, the court reasoned that in Tinker, the students were expressing personal sponsored beliefs that happened to occur on school grounds. Here, however, there is a question of the teacher’s authority over a school-sponsored publication. Because the publication is part of the school curriculum, what may be written could be considered the school’s attitude about a particular issue. Therefore, the school has the right to hold students to a higher journalistic standard.
Finally, the court determined that the amount of censorship was reasonable. Additionally, there was a reasonable explanation for why the censorship occurred. The privacy of students and parents could have been infringed because proper journalistic methods to protect those individuals were not included.
- Censorship of school-sponsored publication is acceptable.
- The court will use a “reasonableness standard” to determine if the censorship is justified.
Branzburg v. Hayes
Paul M. Branzburg was a reporter working in Louisville, Kentucky. While working there, he wrote two articles about drug users in the area. He agreed to keep the names of those he interviewed undisclosed.
Because of these articles, Branzburg was subpoenaed (sued to provide information) to reveal the names of those he interviewed who had possession of illegal drugs.
Branzburg refused to answer the questions from the grand jury and the judge on First Amendment grounds. Branzburg then started legal action to keep the court from taking any actions against him.
The court found that requiring reporters to testify before a jury does not violate the freedom and speech and press. In other words, reporters have no special rights.
Justice White also provided the opinion for this case. He begins by saying that freedom of speech is important and needs to be protected. In this case though, the federal court did not attempt to restrain what the press may publish. Additionally, there was also no attempt to restrict the press from gathering sources.
Instead, the court was asked to examine whether the press has a responsibility to respond to a grand jury if asked to do so. The court held that reporters must respond if called upon.
Justice White then goes on to provide reasoning. He says that law enforcement is designed for public safety. Further, a grand jury is a constitutionally mandated institution and must be protected.
Here, the names of informants were confidential to keep them free from prosecution for criminal activities. Justice White states that this process does not afford constitutional protection.
He closes by saying that privilege may be offered in some instances. States may make their laws to provide some or absolute reporter’s privilege as long as they fall within the guidelines established by the First Amendment.
The largest takeaway is that the press receives no special rights unless a state legislature enacts laws to grant them certain privileges.
New York Times v. United States
An additional case about prior restraint examining the national security exception.
Cox Broadcasting Corporation v. Cohn
This case discusses if the government can regulate the press by prohibiting content.
Miami Herald v. Tornillo
This case discusses if the government can regulate the press by mandating content.
Red Lion Broadcasting v. FCC
This case determined that electronic media may be regulated in ways that press media cannot.