History of Press Freedom

The United States seems to be the elite leader of press freedom, due to the First Amendment protection afforded to it. The press in America had gravitated towards the role of watchdog over the government, which has earned it the title of the “Fourth Estate.” In this role, the U.S. media has a privileged status – internationally, the roles of media and government tend to be reversed.

The newly founded democracies in Central and Eastern Europe are attempting to develop and guarantee press freedoms in their constitutions. They face many challenges that the press in the U.S. are constitutionally protected from, such as imprisonment and execution of journalists, closure of press facilities, censorship and restraint of publication, and other economic and ethical pressures. According to Leonard Sussman of the Freedom House, an international human rights organization, 1994 marked the fourth year of steady decline in press freedoms around the world. The result of this is one-sided, if any, debate of issues, a less-informed citizenship, and overall decreased knowledge for all.

Americans have educated themselves on the First Amendment in order to prevent loss of freedoms and unconstitutional governmental controls. The American press developed out of the struggles for freedom and independence from Great Britain. This legacy was transcribed in the First Amendment of the Constitution’s Bill of Rights and continues today.

Freedom of the Press in the U.S. covers invasion of privacy, free expression, access to government information, prior restraint, commercial speech, libel, and slander.

Historical Development of Freedom of the Press

Before the Stamp Act of 1765, most printers in the colonies treated newspapers as any ordinary printing job, similar to books, pamphlets, and posters. Most of the information in these newspapers included reprints of other publications, stories of local interest, literature, advertisements, and opinions. With the introduction of the Stamp Act, the printers became publishers.

Samuel Adams, a radical journalist, roused the people by using the colonial press to resist the Stamp Act, which eventually was repealed. Adams’ response to this success bore the signs of modern journalism:

“But YOUR Press has sounded the alarm. YOUR Press has spoken to us the words of truth. It has pointed to this people their danger and their remedy. It has set before them liberty and slavery…”

The American Revolution produced many historic newspapermen. Their strong feelings in support of independence and revolution were poured into their writings, spurring public interest and education on the issue. In essence, this was the beginning of the press’ role with the government, developing the press freedom that would later be set in the Constitution.

After the American Revolution, newspapers took a more critical stance with the newly formed government. Newspapers reported the financial difficulties created by the worthless American currency and argued against new stamp taxes. When the states began to meet to discuss the formation of a new central government, the Constitution’s “Founding Fathers” kept their deliberations secret. There was no public access, freedom of information, open meetings, or “right to know” guarantees then.

Although the Constitution contained a clause for freedom of the press in the Bill of Rights, the government originally set many controls on the press and quieted the opinions of most early journalists. Later, the First Amendment was put on the back burner when the federal government muzzled the press through the use of the Sedition Act of 1798, which made any speech or writings against the U.S. government unlawful.

The focus of American journalism soon began to center on the new capital, Washington D.C., in 1810. Joseph Gales and William Seaton, publishers of the National Intelligencer, brought objective reports of congressional debates and other governmental events to the public’s attention. Politics began to play more of a role in reporting as the 19th century progressed. Slavery, presidential elections, the suffrage movement, temperance, free education and foreign policy (i.e. the Monroe Doctrine of 1823) were news. Newspapers, which could now be produced rapidly and more cheaply, were becoming the catalyst to social change by bringing information on many national issues to the masses.

Throughout the mid- to late-1800s, newspapers also became more focused on sensationalism. Stories about love, tragedy, crime and entertainment found their way into newspaper in order to increase circulation.

With Horace Greeley’s 1835 statement that the future was in the west in a New Yorker article, more newspapers spread throughout the west. Photography was improved, and photos began appearing regularly in newspapers. This new medium publicized images of the Civil War. Political cartoons were also an addition to the papers at that time. Such politicians as Boss Tweed and Abraham Lincoln in turn hated and celebrated the satirical drawings, as influences on their success, or lack of it, in the political arena.

Prior to the 1930s, the Supreme Court position on First Amendment freedoms was to suspend free speech and press if the expressions constituted a “reasonable tendency” to endanger society. These expressions were judged by whether they created a “clear and present danger” to society.

These were the beginnings of press freedom in America, the evolution of the “Fourth Estate.”

Free Press in the 20th Century

Freedom of the Press has branched into many avenues since its beginning. It, in many ways, can be likened to a roller coaster ride, where it experiences alternate highs of unrestricted interpretation of the First Amendment, and lows of censorship and tight control.

Newspaper journalists seem to have gained advantages over their colleagues in the broadcast media. The broadcast press has remained closely scrutinized by government. Policy makers and the courts justify restrictions by arguing that the airwaves used to broadcast the news are a limited commodity and not readily available to each individual to gain access to. This was the reasoning given by the Federal Communications Commission (FCC) and the Supreme Court in its 1969 decision, which upheld the constitutionality of the Fairness Doctrine, in Red Lion Broadcasting v. FCC. The doctrine held that any editorial broadcasts must give equal time to opponents to respond on the air. Broadcasters contended that this is a governmental control over their First Amendment rights to free press and speech; however, the government held that due to the nature of the medium, it was a legitimate control.

The broadcast media, until very recently, were unable to take their television and radio equipment into criminal court trials. The courts felt that such an intrusion prejudiced jurors and could possibly incite individuals outside the courtroom with strong emotions involved in the outcome of the case. Several Supreme Court cases overturned convictions based on this reasoning. Thus, the Court ruled against the intrusion to prevent this from recurring. However, broadcasters are now admitted based on state-to-state regulations and statutes. Thirty-four states do allow the use of cameras in criminal trials. There are restrictions against cameras in Illinois and federal courtrooms.

The Rodney King trial and ensuing riots have been used as one argument against such extensive media coverage of trials. Many blame television for bringing “sound byte” images that lead to prejudicial feelings and outrage. The saturated O.J. Simpson trial coverage became a market idea for television stations. Consequently, people have begun to question the need for such coverage, or at least the amount of it.

The question of allowing cameras, particularly television cameras, into the courtrooms across America is a complicated one. Of course, the easiest reason to make these allowances is the First Amendment. Some individuals, however, feel that there this may constitute an invasion of privacy in many instances.

There are some supporters who believe this is a protected freedom that provides a service to the public. After all, television has played an integral part in every political campaign since the late 1940s. It has brought us a vivid look at the reality of American life – the assassination of a favored president, the downfall of another, hearings before Senate and House committees, and wars. It is, therefore, a natural progression of the media to show the judicial end of our society.

There is a fear among many who decide this issue that TV in court will distort judicial proceedings, possibly getting the lawyers, the parties in the case, and even the judge caught up in the publicity and hype that any trial coverage may spark. Also important to consider is which types of cases are acceptable to air. Perhaps all cases would be aired, but would the public really want to view them? Unfortunately, it seems as though the interests served by cameras in the courtroom could turn from recording the proceedings for reporting purposes, to recording them for entertainment.

The privacy question involves protection of witnesses and the families involved in violent crimes, or the jurors. There is a definite interest in presenting a look into the courtrooms of our legal and justice system and even a look at our society. This falls within the interest of the public. Yet, we must look diligently at the motives behind television in courts – is it entertainment, or factual representation?

The 1960s brought political unrest for journalists and government. The press found itself amid new legal difficulties, in the guise of profound usage or subpoena power. Libel suits and invasion of privacy clashed with the press’ and public’s right to know and right to information. The war years were especially difficult and presented the following dilemma: the press wanting to use its freedom as stated in the First Amendment versus the government’s potential, self-expressed, need for secrecy and confidentiality.

This time period also saw the issue of prior restraint come once again to the forefront. In Near v. Minnesota (1931), the Supreme Court defined freedom of the press and prohibited the government from restraining a publication prior to its distribution. Any restraining action could only be taken when the contents of a named publication constituted a “clear and present danger” to society. The Court also reminded the press and others that First Amendment freedoms are not absolute, and certain expressions did not fall under its protections, such as obscenity.

Supreme Court Justice William J. Brennan, Jr. became one of the the Court’s principal architect of free expression philosophy. Among his accomplishments that benefited free press was the creation of Court majorities for the broad theoretical framework that governs expression in the domain of obscenity and libel. He is also credited with creating the Right of Access that enables the press to cover government doings.

During the 1970s, the questions of subpoena and injunction power resurfaced. Journalists found it difficult to perform their “watchdog” role with the widespread support of subpoena use. By 1974, a majority of the states had passed “shield laws” with the intention of protecting journalists from being forced to reveal their sources of news. However, there was no federal shield law. The Supreme Court declared in a 5-4 vote, in Branzburg v. Hayes (1972), that the First Amendment does not automatically give journalists the right to refuse judicial orders and subpoenas. It was also during this era that commercial speech was once again afforded protection under the First Amendment. However, the controversial prior restraint issue remained in the spotlight, confronting the issues of symbolic speech, gag orders, and protests.

The 1980s ushered in a more conservative set of Supreme Court judges. The press lost most of its Sullivan protections against libel. The right to access that the press had previously enjoyed became more restricted. Yet, out of this decade, courtrooms were beginning to open up to cameras.

Source:
Illinois Press Association Guide to First Amendment and Illinois Access Laws (1995)

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