How Free Can the Press Be?
Publication Year: 2003
Published by: University of Illinois Press
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America enjoys a love-hate relationship with the press. The press often evokeswarm feelings of admiration and respect. But it also evokes hard feelingsbased on distortion, arrogance, and trivialization. Neither feeling is wrong;neither is right. Can we make some sense out of our conflicting emotions?The First Amendment to the Constitution states that “Congress shall make...
1. The Purpose of Press Freedom
Why does the First Amendment guarantee “the freedom of the press”? Is thepress’s freedom protected as an end in itself, a core principle of liberty? Oris the press’s freedom a means to a larger end? Is the press free because itsfreedom is an essential ingredient of the constitutional order of things, ameans by which people can obtain information from sources outside the...
Story 1: Freedom to Publish
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Suppose an enterprising reporter gets hold of a highly sensitive governmentdocument alerting the Attorney General and the head of Homeland Se-curity to an imminent terrorist act in a particular city at a known loca-tion. The document contains detailed information about the predictedattack, including sources and methods by which the information was ob-...
2. Editorial Judgment
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The First Amendment provides that “Congress shall make no law abridgingthe freedom of speech or of the press.” What distinguishes press expressionfrom free speech, which is separately mentioned? Some scholars have arguedthat there is no difference. The press’s freedom was mentioned simply tomake certain that newspapers, pamphlets, and other publications were not...
Story 2: Freedom to Decide What to Publish
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Miami is a big, hungry, boisterous, ethnically diverse city. Politics are oftendivisive, contentious, and played for keeps, hardball style. Miami’s newspa-per, the Miami Herald, is also big, dominant, and aggressive. If the desirablecondition of a free press in America is “uninhibited, robust and wide-open,”as the Supreme Court has said, the Herald fits the bill. Our story involves a...
Story 3: Truth and Uncertainty
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Libel law is not really about truth. At least this is so when the press pub-lishes a libelous statement about public officials, prominent public figures,or even ordinary persons who have injected themselves into a public con-troversy. In such cases libel law is about “actual malice”—whether the pub-lisher knew the statement was false but published it anyway or had serious...
When we think of the “press,” we ordinarily think of “news”—current in-formation and opinion on matters of government, politics, economics, andsocial affairs. This intuitive definition pretty well captures the term used inEngland as the press was struggling to emerge from beneath the heavy handof control by the Crown, enforced through the hated stamp. There the bat-...
Story 4: News and Entertainment
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The Supreme Court’s first, and apparently only, experience with what the lawcalls the appropriation, or “right of publicity” tort, occurred in 1977 in thecase of Zacchini v. Scripps-Howard Broadcasting Company. As with many firstefforts, the Court’s attempt to square the tort with the First Amendment wassketchy, even a bit ungainly. But this can perhaps be forgiven, for the task...
Story 5: News and Commerce
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From the beginning of the American republic, the press has been private and,at least in aspiration, profit making. Indeed, its private character is essentialto its freedom and thus to the freedom of the press as we know it. News iscommerce in America, and newspapers and other press entities are commer-The press is, however, a private organization performing public tasks. At...
4. Privacy and Responsibility
The press is perhaps most widely and persistently reviled and feared for itspower to invade personal privacy. Instances of outrageous publication are nothard to find: a photograph of a small child in midair as he falls to his deathfrom a ten-story window, with his mother watching in stark terror frombelow; medical records and photographs of pitiful men confined against their...
Story 6: Protecting Privacy
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On a spring day in May 1993, Gloria Bartnicki was doing what she normallydid, driving to and from meetings in Wilkes-Barre, Pennsylvania, and talk-ing on her cell phone. Bartnicki was the chief negotiator for the teachers’union in the Wyoming Valley West School District. And she was busy. At themoment she was talking to Tony Kane, the president of the local teachers’...
Story 7: What Is the Public’s Business?
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By the time the Des Moines Register story was published, Robbin Howard wastwenty-four years old. She was married. She had a new name and a new homein a new city. In 1970, six years earlier, she was Robbin Woody, a young girlwho had been committed to the Jasper County Home, a public residentialfacility for the care of the retarded, mentally ill, and infirm in Jasper Coun-...
5. Newsgathering and Press Conduct
Must the press be free to trespass, break and enter, employ deceit, violate itsown promises, and invade privacy, all in the name of getting the facts andthe story? Should the means by which information is gathered be left largelyto the press’s own judgment? Is there some special quality that marks thepress’s judgment, allowing the press to claim the right to do things that would...
Story 8: Legal Privilege: Above the Law?
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In fall 1992, ABC’s Prime Time Live did a “hard-hitting” undercover reporton the safety of food-handling practices employed in stores owned by FoodLion, a large grocery chain located in southeastern United States.1 Based onallegations of unsafe and unhealthy practices lodged by a number of formerand current Food Lion employees, ABC decided in early 1992 to run a story...
Story 9: Newsgathering and Press Independence
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Paul Berger was seventy-one when it happened.1 His wife, Erma, was eighty-one. They lived on a seventy-five-thousand-acre ranch in Montana.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 alsomindful of his livelihood and his livestock and thus not unwilling to use a...
6. How Free Can the Press Be?
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In a wonderful, yet little-known, volume titled History of the Taxes on Knowl-edge, which recounts the struggle against the Stamp Act in eighteenth- andnineteenth-century England, Collet Dobson Collet, the author and chroni-cler, begins with the following fictional account: “When the King of the TongaIsles, in the Pacific Ocean, was initiated by Mr. Marriner, the missionary, into...
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Page Count: 272
Publication Year: 2003
Series Title: The History of Communication