CHAPTER

13 FREEDOM OF PRESS AND OTHER MEDIA-RELATED ISSUES

Outline I. History of Freedom of the Press A. Pre-Revolutionary prior restraints 1. British sought to prevent criticism of government and its agencies a. Passed tax laws to suppress publication of comments and criticisms of the King and his policies B. Post-Revolutionary War 1. Massachusetts legislature passed Stamp Act 2. Leads to passage of First Amendment C. Selective incorporation 1. Near v. Minnesota, 283 U.S. 652 (1925) a. Freedom of press made applicable to the states (1) Right is not absolute b. Prior restraints found constitutionally impermissible c. Court will use strict scrutiny when state acts to impose prior restraint II. Special Privileges of the Media A. Court has never recognized special privileges for the media 1. Ambiguity exists because press freedom not deemed part of overall right to free expression 2. Court pronouncements on special privileges for the media a. Publisher has no special immunity from the application of general laws b. Restrictions on publishers’ rights (1) Cannot publish information that is false or damaging to one’s reputation (2) Journalists may be punished for contempt of court (3) No guarantee of special access to information not generally available to the public B. Specific issues 1. Appearance before grand jury to reveal source a. Branzburg v. Hayes, 405 U.S. 665 (1972) (1) Compelling journalist to answer questions about sources before a grand jury does not violate First Amendment free press guarantee (2) Necessary for the grand jury to perform its function (a) Granting privilege to journalists would undermine the authority and ability of the grand jury function b. No federal privilege for journalists (1) History of First Amendment leads to this conclusion (2) Necessary for effective law enforcement (3) Forecloses informants’ ability to escape prosecution 2. Search of newspaper office a. Zurcher v. The Stanford Daily, 436 U.S. 547 (1978)

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(1) Search does not require specific proceedings from those required by the Fourth Amendment (2) Does not constitute prior restraint 3. Taxation on paper and ink used in publishing a. Minnesota Star and Tribune Company v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) (1) Court found (a) Press cannot be singled out for special privileges or special burdens (b) No evidence that legislature censoring newspaper (2) Court employed strict scrutiny (a) State unable to provide compelling government interest that could only be accomplished through use of the tax 4. Confidentiality agreements a. Cohen v. Cowles Media Company, 501 U.S. 663 (1991) (1) Facts: Source of information on political candidate provided information only after newspaper signed confidentiality agreement, then sued when he was identified in the publication (2) Court found that laws applying to the general population do not violate the First Amendment because they have an incidental effect on newsgathering (a) First Amendment does not grant the press limitless protection (3) First Amendment does not give the press the right to disregard promises 5. Generally the law does not single out the press or treat the press differently from the general population III. Government Attempts to Restrain Press A. Prior restraints in general 1. Attempts to use prior restraints held unconstitutional a. Near v. Minnesota b. New York Times Company v. United States, 403 U.S. 713 (1971) B. Fair trial v. freedom of press 1. Tension between public’s right to know and defendant’s right to a fair trial a. Unlimited information about defendant may diminish ability to ensure defendant’s Sixth Amendment fair trial guarantee 2. Court’s pronouncements on fair trial/free press issue a. Bridges v. California, 314 U.S. 252 (1941) (1) Prior restraints on pretrial coverage are unconstitutional unless the government shows a clear and present danger to the administration of justice b. Shepard v. Florida, 341 U.S. 50 (1951) (1) Fair trial guarantee overrides the right of the press to report the news c. Sheppard v. Maxwell, 384 U.S. 333 (1966) (1) Uncontrolled pretrial publicity violates defendant’s Sixth Amendment right to a fair trial (2) Court set forth safeguards to avoid future problems (a) Court control of courthouse, courtroom, and proceedings (b) Court controls number of reporters in courtroom during trial (c) Court controls conduct of reporters in courtroom (d) Insulating witnesses prior to trial and ordering witnesses to refrain from speaking with media (e) Granting continuances or change of venue motions (f) Sequestering the jury (g) Efforts to control the dissemination of information by the police, witnesses, and counsel C. Gag orders 1. Definition: orders designed to keep attorneys, parties, or witnesses from discussing matters before the court with the press 2. Constitutionality of gag orders a. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) 90 Chapter 13

(1) Court acknowledged that pervasive pretrial publicity will not necessarily produce an unfair trial (2) Court reiterated that prior restraints are unconstitutional (3) Provided test similar to that in United States v. Dennis (a) Gravity of evil discounted by its improbability justifies invasion of speech necessary to avoid danger (4) Applied test to determine whether gag order proper in present case (a) Judge’s assessment of pretrial publicity was speculative (b) Alternatives available to ensure fair trial (5) Conclusion: Gag orders should be used sparingly b. Seattle Times Company v. Rhinehart, 467 U.S. 20 (1984) (1) Gag orders may be used when they further (a) “An important or substantial government interest” (b) Unrelated to suppression of speech (c) The limitation is no greater than necessary to protect the state’s interest c. Gag orders will be upheld when they keep attorneys from disseminating information obtained in civil discovery D. Closure orders 1. Courts may close pretrial proceedings to the public and press to ensure uncontaminated potential jury pool a. Gannett Company, Inc. v. DePasquale, 443 U.S. 368 (1979) (1) Court should weigh the interest of the press and public against defendant’s right to a fair trial (2) Proceedings may be closed when defendant’s right is found weightier 2. There is a presumption of openness for criminal trials 3. Closure of criminal trial may be constitutional if a. Balancing test set forth in Gannett is employed b. Determination made that there is an overriding state interest served by closing the trial in the absence of other means of preserving the right to a fair trial (1) Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) IV. Accessing Government-Held Information A. Press does not have a right to information generally inaccessible to the public B. No recognized constitutional right to have government assistance in obtaining information 1. Pell v. Procunier, 417 U.S. 817 (1974) a. Journalists claim right to interview prisoners b. Court found that regulation preventing such interviews was designed to maintain prison security c. Constitution does not require the government to give the press special access to information not available to the general public 2. Houchins v. KQED, Inc., 438 U.S. 1 (1977) a. Press argues that there is an implied right of access to government-controlled information b. Court recognized the public interest in prison conditions and the role of the press in providing that information c. Court found no basis for finding a First Amendment guarantee of a right of access (1) Discussed alternative channels available for the information V. Differing Rules for Broadcast Media A. Legal difference between broadcast and print media based on 1. Airwaves are limited 2. Must be regulated by government 3. Red Lion Broadcasting Company, Inc. v. FCC, 395 U.S. 367 (1969) a. Challenge to fairness doctrine requiring both sides of a public issue to get fair coverage b. Court determined that regulation of broadcast media is necessary c. Found two-prong duty required by fairness doctrine Freedom of Press and Other Media-Related Issues 91

(1) Must give coverage to public issues (2) Coverage must be fair by allowing for opposing views d. Requires that an individual be given time to respond to personal attacks e. Upholds the FCC’s ability to regulate the broadcast media B. Content/Content-Neutral Regulation 1. FCC has authority to make and enforce regulations not addressed to content 2. Court reluctant to allow content-based regulation 3. Court used mid-level scrutiny for content-based regulation a. FCC v. League of Women Voters, 568 U.S. 364 (1984) (1) Balancing of interest with regulation upheld only when government interest outweighs broadcaster’s constitutional rights (2) Regulation must be narrowly tailored (3) Competing interests decided based on particular circumstances 4. Difference between cable television and regular broadcast media a. Strict scrutiny for content-based regulations involving cable television b. For content-neutral regulations involving cable television, mid-level scrutiny is used VI. Summary A. Press enjoys constitutional protection 1. Protection is not absolute 2. Government may regulate under certain circumstance a. Fair trial/free press b. Prior restraint B. Standard of review dependent on type of media involved 1. Print media—strict scrutiny 2. Traditional broadcast media a. Rational relationship for content-neutral regulation b. Mid-level scrutiny for content-based regulation 3. Cable television a. Mid-level scrutiny for content-neutral regulation b. Strict scrutiny for content-based regulation

Key Terms and Definitions freedom of the press: The First Amendment right of the press to publish most things “without censor- ship or prior restraint,” to be free from unreasonable attempts to punish what has already been published and other rights. gag orders: 1. A judge’s order to lawyers and witnesses that they discuss the trial with no outsiders, reporters in particular. 2. A judge’s order, usually held unconstitutional, to reporters that they not report certain court proceedings. gag rule: A gag order; any law or rule that prohibits the expression of ideas or that cuts off debate. motion to vacate: A request that a judge make a ruling or take an action to annul; for example, when a judge vacates a judgment, it is wiped out completely. prior restraint: The government stopping someone from saying, publishing, or otherwise communi- cating something. Prior restraint of speech is unconstitutional under the First Amendment unless the speech is a “clear and present danger” to the country or is obscene or violates a person’s legally recognized right to privacy. promissory estoppel: The principle that when Person A makes a promise and expects Person B to do something in reliance upon that promise, then Person B does act in reliance upon that promise, the law will usually help Person B to enforce the promise because Person B has relied upon the promise to his or her detriment. Person A is “stopped” from breaking the promise even when there is no consideration to make the promise binding as part of a contract. 92 Chapter 13 promulgate: Publish; announce officially; put out formally.

Review Questions

1. What role does the press play in our society, and why is freedom of the press such an important con- cept in our legal system?

2. Should the press have a greater access to information than an individual citizen?

3. Why is the regular broadcast media treated differently from the print media?

4. What is the difference between content-neutral and content-based regulations, and what standards of review are used for both?

Internet Connections

1. For more information on the media’s perspective on free press, visit the home page of the Society of Professional Journalists. This organization is dedicated to the perpetuation of freedom of the press and can be found at http://www.spj.org.

2. For a list of cases discussing freedom of the press issues, go to the home page of the Legal Information Institute (LII) at Cornell Law School. It can be found at http://www.2.law.cornell.edu.

3. To find journal articles discussing freedom of the press, see the U.S. Information Agency Electronic Journal, Vol. 2, No. 1, February 1997, which includes the USIS Bibliography of Journal Articles at http://www.usinfo.state.gov/journals.

4. For a country-by-country survey of press freedom, see the Press Freedom Survey 2000 at http:// www.freedomhouse.org/pfs2000.