First Amendment Series: Freedom of the Press

The First Amendment to the Constitution guarantees five distinct freedoms: freedom of the press, freedom of speech, freedom of religion, freedom of assembly, and freedom of petition. The guarantee of these freedoms, in writing and respected by the government, were groundbreaking at the time. Today is just the first in a series explaining each one of these freedoms, how they came to be, how they have changed over time, and what they mean.

Freedom of the press guarantees a right to criticize. It means that you can disagree with the president and distribute it without losing your head. It also ensures that the press can do their jobs, holding public figures accountable and reporting independently, with facts, regardless of what leaders say or do. It should be noted that the press is not totally free. There are, of course restrictions to this to be discussed later. In fact, the United States ranks 45th in the world in terms of press freedom according to Reporters without Borders.

The idea of a free press started before even the founding of the United States. Under British colonial rule, the press was restricted to what authorities wanted printed. In 1734, a newspaper publisher named John Peter Zenger was put on trial for libel as his paper was critical of the British governor. The case received a lot of public attention. He was acquitted on the grounds that disent and even defamatory statements are not necessarily libelous. It very much set the groundwork for the idea of free press in America. In 1791, the founders formalized this in the Bill of Rights.

Just 11 years after the Constitution came into effect, freedom of the press had its first major test. The Alien and Sedition Acts of 1798 made it illegal to criticize the president or Congress. Ironically, it was passed by many of the people who first engrained freedom of the press into the Constitution. The laws were very unpopular and a major reason why John Adams did not win reelection. The law didn’t last long. When Thomas Jefferson took office two years later, he actually pardoned most who were convicted under the law.

Throughout the first hundred years of the country, freedom of the press remained stagnant. For one, the reach of each publication was limited to where it could be transported to. The speed that information was passed along was also incredibly slow compared to today. Finally, most papers were not independent but affiliated with a party. Thus, they were less in the business of holding leaders to account and instead focused on promoting their supporters or criticizing their opponents.

That all changed at the turn of the century when papers had a broader reach, many different causes and philosophies were being pushed, and journalists became more independent because demand called for that. This was largely due to the rise of advertising as well. During World War I, the United States passed a new round of Sedition Acts, punishing any language “disloyal” to the US. The Supreme Court upheld the law, outlawing speech that presented a “clear and present danger.” The law would be repealed two years later and the “clear and present danger” standard would be largely amended in subsequent rulings.

This was not the only restriction added to free press. In 1945, the high court ruled that media companies were subject to anti-trust laws. In 1998, the Supreme Court also ruled that school administrators have the right review and suppress articles in school-funded newspapers. The 21st century, has brought various cases surrounding the internet. In some cases, online whistleblowers have not been protected. In other cases, online bloggers have been afforded the same protections as other institutional media.

But freedom of the press has also expended in the last century. In 1964, the Supreme Court said that in order to prove libel, the plaintiff must show that the publication acted with malice. Then, in 1970, the court protected the use of rhetorical tools like hyperbole. Finally, in 1971, the court protected the New York Times’ and Washington Post’s right to publish the classified Pentagon Papers without fear of punishment.

But the press is still restricted in some ways. Whistleblowers are not always protected. Journalists are denied information, especially from the government or the public who view them with hostility. They face accusations and litigation for libel and defamation, sometimes justified and sometimes not. But overall, we are lucky to live in a national where journalists are free to hold our leaders to account and publish the things they do not want us to know; a country where they are free to criticize and share the facts no matter how inconvenient it is to those in power.