FREEDOM OF THE PRESS (Update 1)

The first amendment's guarantee of freedom of the press is vitalized, as is freedom of speech, by the synergy among the justifications for the protection of freedom of expression: (1) the marketplace of ideas is the best way of ascertaining truth; (2) full discussion of options is necessary to maintain a self-governing polity; (3) choice of both the means and the content of conveying one's messages is inherent to the notion of individual self-expression; and (4) free discussion is necessary as a check on governmental power by providing information for a resisting citizenry. The justifications have been translated into a set of doctrines that preclude the following in declining order of absoluteness: government licensing the printed press; prepublication censorship; demands that certain information be published; and with tightly circumscribed exceptions, civil or criminal liability for what is published. The right to publish is thus highly protected, but the right to gather news, although essential to the operation of freedom of the press, has proved difficult to implement by judicial decision.

Licensing the printed media, as Great Britain required before its Glorious Revolution, has never been seriously suggested. Occasionally, Congress has debated a specific wartime or national security preclearance censorship provision, but none has been adopted; and if adopted, it would almost certainly have been successfully challenged. When Minnesota did appear to have enacted a limited preclearance scheme with its so-called gag law, the Supreme Court held it unconstitutional in near v. minnesota ex rel. olson (1931).

miami herald publishing company v. tornillo (1974), invalidating a right-to-reply law, suggests that a newspaper may never be required to publish or be punished for not publishing an item it wishes to exclude. Tornillo, a candidate for the Florida legislature, had been savaged by a pair of editorials in the Miami Herald just before the election. He demanded that the Herald print his responses as required by a state law regulating electoral debates. The Court, however, unanimously held the law unconstitutional, reasoning that it would "chill" the newspaper's willingness to enunciate its views and that it intruded into editorial choice. The latter rationale sweeps broadly enough to assure autonomy in deciding what to exclude.

The contested areas of freedom of the press involve attempts by the press to acquire information and attempts by the state to punish publication of certain sensitive information. Under very limited circumstances, government may successfully block publication by an injunction remedy. Under broader, but still limited circumstances both civil and criminal remedies may be allowable.

Near analogized the Minnesota gag law, which placed a newspaper under a permanent injunction banning future "malicious, scandalous and defamatory" publication, to the traditional common law prior restraint created by preclearance licensing. Because a barebones guarantee of freedom of the press was a ban on prior restraints, the Minnesota gag law was unconstitutional—the first statute ever found to violate the First Amendment. Near did not go all the way and ban all prior restraints. Thus, in Near 's most famous passage, the Court implied that national security might well be a ground for a prior restraint: "No one would question but that a government [during actual war] might prevent actual obstruction to its recruiting service or the publication of the sailing dates of troops and transports or the number and location of troops." Subsequently, it has been assumed that if a prior restraint were ever appropriate, national security would be the justification. Nevertheless, in new york times v. united states (1971), its most publicized national security case, the Supreme Court concluded that the government had not met its burden of proof to prevent publication of the Pentagon Papers, which described top secret decision making involving the vietnam war. The modern reality of copying machines and computer disks has made injunctive prior restraints obsolete because the materials will always show up somewhere else and any injunction will be futile to prevent disclosure—facts not yet reflected in the doctrine.

Despite upholding the press in every single case involving privacy and the first amendment and in other noncopyright contexts where the press has published truthful information noncoercively obtained from governmental sources, the Court has avoided sweeping rules and always assumed that somewhere lies a situation where the press ought not publish. Again, national security heads the list, and the Court has recognized the enforceability of contracts that forbid publication without approval of the Central Intelligence Agency; it would undoubtedly sustain the federal prohibition on disclosing the identities of intelligence agents as part of a pattern of activities intended to expose covert action. Beyond national security, the protection of sensitive private information of nonpublic figures is the next most likely candidate for a limitation on publication, although any such limitation will have to be carefully circumscribed. Thus, in Florida Star v. B.J.F. (1989), a civil privacy case, the Court set aside an award of damages for negligent publication of a rape victim's name because the paper had lawfully obtained the information through governmental disclosure. The Court recognized, as it had previously, that the state is in the best position to protect against disclosure through careful internal procedures.

Florida Star may usefully be contrasted with Seattle Times v. Rhinehart (1984), where the Court held that a trial court can forbid publication of information acquired by the press in state-mandated discovery, unless the information actually comes out in the litigation. Rhinehart's balance demonstrates that there are some circumstances where it is too unfair to allow the press to publish (without sanction) information that it has. One may extrapolate from Rhinehart that, if the press were to break into property and pillage files (or plant bugs) and later to publish, then the publication could also be penalized.

But these examples of coercive acquisition of information are a far cry from the issue ducked ever since the Pentagon Papers Cases (1971): what if the press should publish information unlawfully taken by a third party (as federal law forbids)? Here, outcomes of the Court's decisions, rather than the reasons offered, appear to preclude sanctions in cases where the press does not coercively acquire the information, while leaving the potential deterrent of criminal penalties hanging as a last resort.

A similar outcome prevails in cases of efforts of the press to obtain information. Constitutional rhetoric surrounding the importance of information to a self-governing citizenry supports a right of the press to obtain the information necessary for self-governance, but this rhetoric also leaves no principled stopping places. As a result, the Court has stated that news gathering is part of freedom of the press, but has also found implementation of such a right to be largely beyond its skills. When branzburg v. hayes (1972) raised the claim of a reporter's privilege not to disclose sources, the Court rejected it, although in obiter dicta it stated that orders designed to "disrupt a reporter's relationship with news sources would have no justification." Despite fears of the press, government generally has not abused its limited right to require disclosure.

The Court initially rejected claims of the press of access to prisons and pretrial hearings, but in richmond news-papers v. virginia (1980), it held that the press and public have a right to watch criminal trials. Although the press acted as if Richmond Newspapers might convert the First Amendment into a freedom of information sunshine law, it is not. This decision opens courtroom doors, but not those of grand juries or the other branches of government.

The least satisfying area of the Court's jurisprudence on freedom of the press is the one where the Court has been the most active: the constitutionalization of the law of libel in the wake of new york times v. sullivan (1964). Despite this decision's promise to balance successfully the interests of reputation against the chilling effect that civil liability imposes on the press, over the years the constitutional law of defamation has become an ever more intricate maze of rules that in operation protect neither reputation, the press, nor the public's interest in knowing accurate information.

Although the best-known feature of current libel law may be its division of defamed plaintiffs into two classes, public figures and private figures, with the former having to meet the New York Times actual-malice standard—this distinction has had little impact on litigation. The reason is that private figures also need to show actual malice if they are to recover punitive damages—the financial key to their attorneys' taking their cases on contingent fees. At trial, the current constitutional rules attempt to minimize jury discretion. According to Milkovich v. Lorain Journal (1990), the plaintiff bears the burden of proving falsity, and those statements that "cannot reasonably be interpreted as stating actual facts" are fully protected. There is also strict appellate supervision of the evidence, something unmatched in any other area of law.

The intricate structure of First Amendment libel law has been widely criticized. In operation, the overwhelming number of libel suits are disposed of before trial; in such a case, the plaintiff is never granted an opportunity to show that the defamatory statements were false. If the case goes to a jury, the odds shift heavily to the plaintiff, although the damage awards are likely to be set aside either by the trial judge or the appellate court. It is the rarest of plaintiffs who successfully hurdles all the rules designed to protect the press. As a result, the rules do not provide the public with an opportunity to know the truth about injured plaintiffs; the law underprotects reputation; and in all likelihood, individuals are deterred from entering the public arena where, rightly or wrongly, they are often perceived as fair game.

Nevertheless, current law also fails to serve the interests of the press. A wholly unanticipated aspect of New York Times was the way it turned the libel trial away from what the defendant said about the plaintiff to scrutiny of how the press put the story together. When the trial focuses on the practices, care, motives, and views of the press—especially when, as is likely for a case reaching trial, the story is false—the dynamics of the case invite punishment of the press. A good trial lawyer will be able to paint the dispute as a contest between good and evil, and the evidence necessary to prove reckless disregard of the truth leaves no doubt as to which side is evil. In the 1980s, the average jury award in cases where reckless disregard was found exceeded $2 million.

It does not reduce the chill on newspapers to learn that few plaintiffs get to keep their awards and that the average successful plaintiff receives a mere $20,000. There seems to be a damages explosion in tort verdicts generally, and newspapers know catastrophe can arrive with just one huge verdict. An example was the $9 million judgment against the Alton (Illinois) Evening Telegraph, which sent the paper to bankruptcy court (although a subsequent settlement allowed the 38,000-circulation paper to stay in business). What makes defamation a special tort is that the injury that plaintiffs suffer seems far less severe than that suffered by a physically injured tort plaintiff. Large jury verdicts, both for punitive damages and those for emotional pain and suffering, thus seem designed more to punish than to compensate.

The operation of New York Times has thus produced a strange landscape. Issues of truth and falsity rarely surface, and reputations are not cleared for the vast majority of plaintiffs. For those few that get to a jury, however, trying the press can lead to a large, albeit momentary, windfall. The possibility of that windfall, coupled with the necessary legal fees to avoid it, maintains a chilling effect, even though appellate supervision typically cuts the verdicts to size. Libel law, having been wholly remade in the wake of New York Times, needs to be rethought again. It is not that the Court has misunderstood what to balance; rather, its balance systematically undermines all the values it attempts to protect.

A free press is essential in a democracy, and the Court's doctrines have never lost sight of this. Typically, press cases parallel speech cases, but one area where the Court has split the two is taxation. To protect the press, the Court has struck down press taxes that are unique to the press or treat different parts of the press differently. Whatever the imperfections of the law of freedom of the press, few areas of constitutional law have achieved a more coherent whole than freedom of the press. Even an "outrageous" parody of the Reverend Jerry Falwell in hustler magazine v. falwell (1988), found by a jury to have inflicted extreme emotional distress, received the unanimous protection of a Court certain that freewheeling caustic discussion must be a central object of constitutional protection if we are to have a free and therefore secure press.

L. A. Powe, Jr.
(1992)