How Free Can the Press Be?
Publication Year: 2003
Published by: University of Illinois Press
Series: The History of Communication
America enjoys a love-hate relationship with the press. The press often evokes warm feelings of admiration and respect. But it also evokes hard feelings based on distortion, arrogance, and trivialization. Neither feeling is wrong; neither is right. Can we make some sense out of our conflicting emotions? ...
1. The Purpose of Press Freedom
Why does the First Amendment guarantee “the freedom of the press”? Is the press’s freedom protected as an end in itself, a core principle of liberty? Or is the press’s freedom a means to a larger end? Is the press free because its freedom is an essential ingredient of the constitutional order of things, ...
Freedom to Publish (New York Times Co. v. United States)
In the lore of the First Amendment, the controversy over publication of the Pentagon Papers is emblematic of freedom of the press. The case tested the outer limits of the press’s freedom to decide what to publish as news, to decide what people should be able to read or hear, and to weigh the harms of publication against the benefits. ...
2. Editorial Judgment
The First Amendment provides that “Congress shall make no law abridging the freedom of speech or of the press.” What distinguishes press expression from free speech, which is separately mentioned? Some scholars have argued that there is no difference. ...
Freedom to Decide What to Publish (Miami Herald Publishing Company v. Tornillo)
Miami is a big, hungry, boisterous, ethnically diverse city. Politics are often divisive, contentious, and played for keeps, hardball style. Miami’s newspaper, the Miami Herald, is also big, dominant, and aggressive. If the desirable condition of a free press in America is “uninhibited, robust and wide-open,” as the Supreme Court has said, the Herald fits the bill. ...
Truth and Uncertainty (Harte-Hanks Communications, Inc. v. Connaughton)
Libel law is not really about truth. At least this is so when the press publishes a libelous statement about public officials, prominent public figures, or even ordinary persons who have injected themselves into a public controversy. In such cases libel law is about “actual malice”—whether the publisher knew the statement was false ...
When we think of the “press,” we ordinarily think of “news”—current information and opinion on matters of government, politics, economics, and social affairs. This intuitive definition pretty well captures the term used in England as the press was struggling to emerge from beneath the heavy hand of control by the Crown, enforced through the hated stamp. ...
News and Entertainment (Zacchini v. Scripps-Howard Broadcasting Company)
The Supreme Court’s first, and apparently only, experience with what the law calls the appropriation, or “right of publicity” tort, occurred in 1977 in the case of Zacchini v. Scripps-Howard Broadcasting Company. As with many first efforts, the Court’s attempt to square the tort with the First Amendment was sketchy, even a bit ungainly. ...
News and Commerce (Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations)
From the beginning of the American republic, the press has been private and, at least in aspiration, profit making. Indeed, its private character is essential to its freedom and thus to the freedom of the press as we know it. News is commerce in America, and newspapers and other press entities are commercial enterprises. ...
4. Privacy and Responsibility
The press is perhaps most widely and persistently reviled and feared for its power to invade personal privacy. Instances of outrageous publication are not hard to find: a photograph of a small child in midair as he falls to his death from a ten-story window, with his mother watching in stark terror from below; ...
Protecting Privacy (Bartnicki v. Vopper)
On a spring day in May 1993, Gloria Bartnicki was doing what she normally did, driving to and from meetings in Wilkes-Barre, Pennsylvania, and talking on her cell phone. Bartnicki was the chief negotiator for the teachers’ union in the Wyoming Valley West School District. And she was busy. ...
What Is the Public’s Business? (Howard v. Des Moines Register & Tribune Company)
By the time the Des Moines Register story was published, Robbin Howard was twenty-four years old. She was married. She had a new name and a new home in a new city. In 1970, six years earlier, she was Robbin Woody, a young girl who had been committed to the Jasper County Home, a public residential facility for the care of the retarded, mentally ill, and infirm in Jasper County, Iowa. ...
5. Newsgathering and Press Conduct
Must the press be free to trespass, break and enter, employ deceit, violate its own promises, and invade privacy, all in the name of getting the facts and the story? Should the means by which information is gathered be left largely to the press’s own judgment? Is there some special quality that marks the press’s judgment, ...
Legal Privilege: Above the Law? (Food Lion v. ABC)
In fall 1992, ABC’s Prime Time Live did a “hard-hitting” undercover report on the safety of food-handling practices employed in stores owned by Food Lion, a large grocery chain located in southeastern United States.1 Based on allegations of unsafe and unhealthy practices lodged by a number of former and current Food Lion employees, ...
Newsgathering and Press Independence (Berger v. Hanlon)
Paul Berger appears to be something of a character: independent and even, perhaps, a bit crusty; acclimated to the out of doors and to nature but also mindful of his livelihood and his livestock and thus not unwilling to use a strategically employed chemical or two, or even a shotgun, to control the damage done by prey, ...
6. How Free Can the Press Be?
In a wonderful, yet little-known, volume titled History of the Taxes on Knowledge, which recounts the struggle against the Stamp Act in eighteenth- and nineteenth-century England, Collet Dobson Collet, the author and chronicler, begins with the following fictional account: “When the King of the Tonga Isles, in the Pacific Ocean, was initiated by Mr. Marriner, ...