FREEDOM OF THE PRESS
Any discussion of freedom of the press must distinguish freedom in fact from legal freedom. The principle of freedom of the press as a constraint on government actions against the press can differ from the amount of freedom the press actually exercises at a given time. On the one hand, various social, political, and economic forces may serve to make the press freer in fact than it is in law. Conversely, those same forces may substantially curtail the exercise of a legal freedom.
This article addresses only the development of the principle of freedom of the press, according to which government control of the press is subject to political, legal, or constitutional constraints greater than those applicable to other forms of government action. In this sense of freedom of the press, the principle in the United States evolved from English thought. Anticensorship themes had been sounded early in the seventeenth century, but the work that had the most lasting influence was John Milton's Areopagitica: A Speech for the Liberty of Unlicensed Printing to the Parliament of England (1644). Although Milton argued only for elimination of licensing in advance of publication and did not object to prosecution thereafter, and although the freedom he advocated did not extend to Catholics and others he viewed as beyond the pale, his eloquent objection to what we now call "prior restraint" has had lasting influence.
English pleas for freedom of the press increased in the early part of the eighteenth century. Among the most prominent were John Trenchard and Thomas Gordon's pseudonymous Cato's Letters, which went beyond Milton in arguing against prosecutions for seditious and criminal libel as well as against licensing. These and similar writings had great influence in the colonies, and the arguments exemplified by Cato's Letters surrounded the trial in 1735 of John Peter Zenger, the most important colonial precursor to later American developments.
Zenger was the publisher of the New York Weekly Journal, which had printed harsh criticisms of Governor William Cosby of the Province of New York. Zenger was prosecuted for seditious libel, and consistent with the law at the time the jury was instructed to consider not whether the work was actually seditious (an issue then considered a matter of law for the judge and not one of fact for the jury) but only the questions of whether Zenger had published the work and whether it referred to Cosby. Nevertheless, the jury disregarded these limitations and acquitted Zenger. That acquittal represented the assertion of popular power against the monarchy, in contrast to the modern understanding of freedom of the press as protection against popular control as much as against particular government officials.
Against this background there remains controversy about the intention underlying the First Amendment, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press." Although a common understanding takes this to embody an intention to eliminate the law of seditious libel, there is strong evidence that the amendment (as well as similar provisions in various state constitutions) was intended to embody the Miltonian idea, also found in Blackstone's Commentaries, that only prior restraints like licensing were to be prohibited, with prosecutions for seditious libel untouched by the new Bill of Rights.
As a matter of constitutional law, these issues were not settled until well into the twentieth century, although political discourse, as shown by the negative reaction to and ultimate repeal of the Sedition Act of 1798, gradually assimilated the view that not only licensing but also subsequent punishment of the press for criticizing government and its officials were inconsistent with the view of the press as an institutionalized counterweight to government power. This political understanding, which grew sporadically throughout the nineteenth century, was supported by the development of the common law privilege of fair comment, which substantially limited the availability of civil libel actions against the press for criticizing gov- ernmental officials.
Still, it remained possible for Justice Oliver Wendell Holmes, Jr., to note as late as 1907 that whether the First Amendment prohibited anything other than a prior restraint remained an open question. When the Supreme Court in 1919 started to put teeth into the First Amendment, it increasingly held that that protection went far beyond prohibiting prior restraints. But the historical legacy remains, for prior restraints are the least justifiable form of restriction on the press. When the Court in 1931 in Near v. Minnesota held impermissible an injunction against a defamatory scandal sheet called the Saturday Press, it established a virtually insurmountable legal standard for attempts to license the press or to enjoin publications in advance. This standard had its most famous application in 1971, when in a widely publicized decision (New York Times Co. v. United States) the Supreme Court held that government attempts to restrain the publication of the Pentagon Papers was constitutionally impermissible, despite government claims that publication would impede the military's efforts in Vietnam, and despite the fact that the documents then in possession of the New York Times and other newspapers had been unlawfully removed from the Defense Department. This case established the principle that prior restraints are for all practical purposes impossible to justify.
By the time the case had been decided, however, the press had also become essentially free from subsequent punishment. In 1936 the Supreme Court struck down a punitive tax on the press that Louisiana governor Huey Long had imposed in retaliation for criticism. And in 1964, in a case that transformed the nature of press freedom in the United States, the Court decided that libel actions based on criticism of public officials (and subsequently all public figures) could not be maintained unless the official was able to show not only that the criticism was factually false but that it had been published with prior knowledge of its falsity. This is such an enormous burden that the press now is largely free from fear of criminal punishment or civil liability based on reporting or commentary on matters of public concern.
As a result, arguments about freedom of the press have turned away from questions of punishment to questions of press privileges and press access. The arguments now commonly concern whether journalists shall be immune from subpoenas or search warrants seeking to discover the products of their investigation, and whether the press shall have access to government information not otherwise available to the public. Although the Supreme Court has largely rejected these arguments as First Amendment claims, the arguments have often persuaded legislatures to enact shield laws, which grant partial immunities from subpoena, and open meeting or freedom of information laws, which give the press greater access to details about governmental actions. Although it is inevitable that the press will always want more information and the government will always want to provide less, the current press freedom in the United States is such that much that happens in government is more widely known and subject to criticism than anywhere else in the world.
Leonard W. Levy, Emergence of a Free Press (1985); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (1986).
Frederick Schauer
See also Bill of Rights; Freedom of Speech; Zenger Trial.
