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The free press provision of the First Amendment prohibits the government from exercising prior restraint, which means a work cannot be censored before it is published. The Supreme Court ruled that freedom of the press applies to the states in Near v. Minnesota (1931), striking down a state law that allowed local courts to stop publication of any periodical determined to be a "nuisance." The Court ruled that upholding such prior restraint "would be but a step to a complete system of censorship." However, the Court also declared that prior restraint might be permissible in cases involving national security.
Issues of national security and prior restraint were at the forefront of the famous "Pentagon Papers" case, which involved secret government documents about the Vietnam War. A former Pentagon employee gave copies of the papers to The New York Times and The Washington Post, which published portions of the documents. The federal government received a court order prohibiting further publication, marking the first time in history that the U.S. government had successfully used prior restraint in the interest of national security. However, when the newspapers appealed to the Supreme Court, in New York Times v. U.S. (1971), it ruled that the government had not proven that publication would threaten national security, and the newspapers were allowed to continue to report the story. In Nebraska Press Association v. Stuart (1971), the Court prohibited a judge from imposing prior restraint on the media during a notorious murder trial.
While the government has the ability to restrict freedom of the press through prior restraint, individuals can limit freedom of the press through libel lawsuits. Libel occurs when false information that damages a person's reputation is disseminated through the media. Often, the threat of a lawsuit can make the press reluctant to publish information before thoroughly verifying its legitimacy. Recognizing this potential restraint on press freedom, the Supreme Court made libel harder to prove when public officials are involved. In New York Times v. Sullivan (1964), the Court ruled that factual errors alone were not sufficient to prove libel. The Court held that to win a libel case, the public official had to prove that the information was published with actual malice—that the publisher either knew that it was false or recklessly disregarded whether it was true or not. In later cases, the Court extended the actual malice test to other public figures, such as celebrities.
Branzburg v. Hayes (1972) further limited the protection enjoyed by the press. Paul Branzburg reported a series of stories about the manufacture and distribution of illicit drugs in the Louisville area. The police were conducting narcotics investigations in the area and subpoenaed Branzburg to testify before a grand jury. Branzburg refused to disclose his sources, citing his freedom of the press rights. The Supreme Court ruled that reporters were obligated to reveal their confidential sources if subpoenaed. The Court rationalized that ordinary citizens are often forced to reveal confidential information in criminal or civil trials. As a reaction to this ruling, many states have enacted laws designed to bolster the protections provided to reporters.
While the press freedoms outlined in the First Amendment apply to all contemporary media, the degree of protection granted by the Court varies depending on the form of communication. Print media has received the greatest protection, but restrictions have become part of the landscape for broadcasters. In Red Lion Broadcasting v. FCC (1969), the Court upheld the power of the Federal Communications Commission to regulate broadcasting, ruling that the airwaves used by radio and television are public property that may be controlled by the government. Cable television faces less regulation than broadcasting because it does not use public airwaves; however, the Court has not granted the industry as much protection as newspapers.
In United States v. Playboy Entertainment Group, Inc. (2000), the Supreme Court examined the Communications Act of 1996. The Act required cable or satellite television providers to scramble or completely block sexually oriented programming to prevent non-subscribers from accidentally viewing "signal bleed." The Playboy Entertainment Group challenged the constitutionality of the law arguing that it placed excessive restrictions on the press. In a 5-4 opinion, the Court ruled that the government's actions were unconstitutional, as the government did not demonstrate that blocking or scrambling the signal was the least restrictive way of preventing non-subscribers from viewing objectionable content. Also, the Court feared that if they upheld the government's complaint, it could pave the way for restrictions or bans on less objectionable content.
Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education