Introduction [393]

 

While freedom of speech and of the press are each explicitly specified in the First Amendment, the Court treats both of these freedoms in the same way. Still, certain doctrines in First Amendment jurisprudence have particular applicability to the press.

 

§13.01 The Doctrine Against Prior Restraints [393-398]

 

Governments have long sought to impose restrictions on the press. Sir William Blackstone suggested that the common law looked with considerable disdain on governments imposing prior restraints on publication. New York Times Co. v. United States, 403 U.S. 713 (1971)–often referred to as the Pentagon Papers case–illustrates the stringency of the modern Court’s protection against prior restraints. Shortly after the New York Times and Washington Post published the first in a series of classified government documents on the Vietnam War (the Pentagon Papers), the United States sued to enjoin publication. The Supreme Court, in a per curiam opinion, stated that any prior restraint bore “‘a heavy presumption against its constitutional validity.’” Id. at 714. As the government failed to meet its burden, the Court refused to impose any prior restraints in this case. Beyond the general and vague per curiam opinion, each of the six Justices in the majority penned separate, and analytically different, concurring opinions. Justice Stewart, joined by Justice White, cautioned that informed citizenry was needed to restrain the tremendous powers of the Executive over national defense and international relations. While Justice Stewart was convinced that some of the documents at issue should remain secret, the government had not established that disclosing “any of them will surely result in direct, immediate, and irreparable damage to our nation or its people.” Id. at 730.

 

In Madsen v. Women’s Health Center, 512 U.S. 753 (1994), the Court declined to apply prior restraint analysis to a broad-ranging injunction issued by a Florida court against abortion protestors and instead inquired whether the injunction burdened no more speech than necessary to serve a significant government interest.

 

§13.02 The Right to Report Governmental Affairs [398-402]

 

Related to the doctrine of prior restraints is the ability to disseminate information acquired in ongoing trials or other government investigations. The specific issue is whether a judge or other official conducting an inquiry can suppress, or at least delay, the dissemination of information about it. The issue arises most prominently in the context of a gag order stopping the press from reporting on a specific case. Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976), demonstrated the difficulty of actually obtaining a pretrial gag order. The trial judge only found that pretrial publicity “‘could impinge’” on a fair trial. Id. at 562. Moreover, the record contained little evidence that the lower courts considered the availability of adequate alternative measures. Questioning the efficacy of the trial court’s order, Chief Justice Burger also noted that it lacked personal jurisdiction to restrain publication in another state. At bottom, the record did not clearly establish that additional publicity would render impossible finding 12 jurors who would follow instructions to decide the case based on the evidence presented in court. The speculative findings made by the trial court did not rise to the level of certainty required to issue a prior restraint.

 

§13.03 Access by the Media to Government Activity [402-405]

 

While government can rarely impose a prior restraint to stop the dissemination of information already known, government can block the flow of information at an earlier stage by denying access to the activities. In Houchins v. K.Q.E.D., Inc., 438 U.S. 1 (1978), government officials refused KQED permission to inspect and take pictures in a prison facility. KQED filed suit. A majority of the Court denied the station access to the prison. Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555 (1980), upheld a right of access to a judicial proceeding.

 

§13.04 Regulation and Taxation [405-418]

 

            [1]  Right of Access to the Media

 

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), upheld the Federal Communications Commission’s (FCC’s) Fairness Doctrine. The doctrine afforded a free opportunity to reply to persons who have been personally attacked on a particular radio or television station in political editorials or in discussions of controversial public issues. While the FCC has since abrogated the doctrine, the constitutional doctrine enunciated in the case remains good law. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), rejected a right of access to the print media.

 

            [2]  Taxation

 

Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), held that Minnesota’s imposition of a special tax on newspapers violated the First Amendment.

 

            [3]  Special Problems of the Electronic Media

 

In FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court struck down (5-4) that part of the Public Broadcasting Act which forbade any public broadcasting stations that received a government grant from engaging in editorializing. In Turner Broadcasting System, Inc. v. FCC, 513 U.S. 622 (1994), the Court provided guidance about the standards for scrutinizing regulations of cable television. In Turner, the Court upheld the constitutionality of the must carry provisions of the Cable Television Consumer Protection and Competition Act of 1992. These must carry provisions required cable television systems to carry local broadcast stations.

 

Writing for the Court, Justice Kennedy rejected any broad-based application of FCC v. League of Women Voters, 468 U.S. 364 (1984), to cable television. The middle tier standard in that case stemmed from the frequency scarcity of the broadcast media, a technological limitation that did not burden cable television. Nor would any structural dysfunction in the cable market justify a broad-based middle tier standard.

 

In the free speech area, the Court imposed strict scrutiny for content-based regulations and middle tier scrutiny for non-content-related restrictions, such as, the one at issue. The must carry rules were simply designed to protect cable access for local broadcasters and their viewers against the economic power of cable operators.

 

The cable operators maintained that the regulations should receive strict scrutiny because the regulations forced speech on cable that the operators would not have chosen to carry. This problem did not demand strict scrutiny as ideas were not being forced on the operators based on their content as they had been in Miami Herald Co. v. Tornillo. Nor did Congress favor one class of speakers, broadcasters, over another, cable operators. Congress merely wished to protect access for local broadcasters and their audiences.

 

Applying the middle tier standard in United States v. O’Brien, 391 U.S. 367 (1968), the regulations had to advance a substantial governmental interest which was unrelated to the suppression of speech, and not burden substantially more speech than required to advance that interest. The government’s proffered interests of preserving free local broadcast television, furthering program diversity, and advancing competition, were both substantial and unrelated to the suppression of speech.

 

In Reno v. ACLU, 521 U.S. 844 (1997), the Court struck down the Communications Decency Act of 1996 (CDA) which was designed to safeguard minors from “indecent” and “patently offensive” transmissions on the Internet.

 

§13.05 Protecting the Newsgathering Process [418-421]

 

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court was asked to afford reporters a First Amendment privilege against revealing their sources to a grand jury. The Branzburg case did not seek to prohibit confidential sources or require their indiscriminate disclosure. The case only involved whether reporters were, like other citizens, obliged to comply with grand jury subpoenas and respond to questions relevant to a criminal investigation. The Court found that the important workings of the grand jury outweighed any uncertain burden resulting on the news-gathering process.

 

§13.06 Injury to Reputation and Invasions of Privacy: Tort Actions as a Restraint on the Media [421-430]

 

            [1]  Defamation

 

In New York Times v. Sullivan, 376 U.S. 254 (1964), the Court held that the First Amendment constrained common law defamation actions. The Court held that a public official plaintiff in a defamation action relating to his official conduct must prove that the defendant published the defamatory falsehood with actual knowledge of its falsity or with reckless disregard as to its truth or falsity. Under this standard, the plaintiff must prove falsity, altering the common law doctrine that truth was a defense. Moreover, the Court required plaintiff to prove this standard with “convincing clarity,” or as later decisions have indicated, with clear and convincing evidence. The standard applied to media and non-media defendants, which were both involved in this case.

 

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), when defamation of private plaintiffs by media defendants was at issue, the states were able to define the standard so long as it was not strict liability.

 

            [2]  Invasions of Privacy

 

Separate from protection against damage to reputation is protection against public revelation of private facts. In Florida Star v. B.J.F., 491 U.S. 524 (1989), a reporter trainee published the name of a rape victim, violating both police policy and the newspaper’s own policy. The Court denied the action.