Freedom of the Press

Key Terms

prior restraint, sequester, gag order, shield laws

Find Out

• How has the Supreme Court ruled when the presence of the media could affect a court trial?

• What is the Supreme Court’s opinion on prior restraint?

Freedom of the Press

Understanding Concepts

Civil Liberties Some people perceive an adversarial relationship between the government and the press. Is this so? Why or why not?

Section ObjectiveAnalyze First Amendment protections for the sharing of information and opinions.

In ruling on Near v. Minnesota, Chief Justice Charles Evans Hughes declared that prior restraint was “the essence of censorship” but acknowledged four possible circumstances in which he felt censorship might be allowed: when something printed was obscene, weakened national security, invaded “private rights,” or incited violence.

A. Prior restraint, or censorship in advance, is permissible only in cases directly related to national security.

I. Prior Restraint Forbidden (pages 371–372)

B. In Near v. Minnesota (1931) the Court ruled that states could not stop the publication of a newspaper because that action involved prior restraint.

C. In the Pentagon Papers case in 1971, the majority ruled that the government could not stop the publication of secret government documents because it would involve prior restraint.

Why were the justices of the Supreme Court divided in their decision in the Pentagon Papers case in 1971? Explain the issues that caused the Court to split in this ruling.

See the case and decision on text page 372.

I. Prior Restraint Forbidden (pages 371–372)

A. The First Amendment rights of a free press sometimes conflict with the Sixth Amendment’s guarantee of a fair trial.

II. Fair Trials and Free Press (pages 372–374)

B. After the Sheppard case (1966), the Supreme Court described measures that courts might take to restrain press coverage, including moving the trial site, limiting the number of reporters in the courtroom, controlling reporters’ conduct in court, keeping witnesses and jurors isolated from the press, and sequestering the jury.

C. Gag orders barring the press from publishing certain types of information are illegal and are allowed only in unusual circumstances.

D. After the Court ruled that reporters, like all citizens, must testify in cases if called and cannot refuse to reveal their sources of information, some states passed shield laws to protect the media from being forced to disclose confidential information in state courts.

II. Fair Trials and Free Press (pages 372–374)

II. Fair Trials and Free Press (pages 372–374)

Do you favor or oppose state shield laws to protect news reporters? Explain your reasons.

Answers will vary. Most states have passed shield laws.

A. The Founders viewed the press strictly as printed material; electronic media had not yet been invented.

III. Free Press Issues (pages 374–375)

B. Radio and television do not enjoy as much freedom as other press media because they use the public airways.

C. The Federal Communications Commission (FCC) regulates radio and television. That agency cannot censor broadcasts but may set standards.

D. Movies and the Internet are protected by free press guarantees.

E. Communities may regulate obscenity within limits acceptable to the courts.

F. Advertising is commercial speech and thus receives less protection than purely political speech.

III. Free Press Issues (pages 374–375)

III. Free Press Issues (pages 374–375)

How has the Supreme Court applied different tests to the news media invented since the Constitution was adopted?

See standards for radio, television, motion pictures, and the Internet on pages 374–375.

1. Main Idea Use a graphic organizer like the one shown to analyze the importance of the Supreme Court’s ruling on the Communications Decency Act.

Checking for Understanding

issue at stake: freedom of speech safeguards on other media, such as the Internet; Court’s ruling: speech on the Internet is constitutionally protected

___ prior restraint

___ sequester

___ gag order

___ shield laws

A. given by a judge barring the press from publishing certain types of information about a pending court case

B. give reporters some means of protection against being forced to disclose confidential information or sources in state courts

C. to keep isolated

D. government censorship of information before it is published or broadcast

Checking for Understanding

D

C

A

B

Match the term with the correct definition.

3. Identify Federal Communications Commission.

Checking for Understanding

The Federal Communications Commission is a government agency that regulates the actions of radio and broadcast television.

4. When can the government exercise prior restraint on the press?

Checking for Understanding

They can exercise prior restraint only in those cases relating directly to national security.

5. What measures may a court take to restrain press coverage in the interest of a fair trial?

Checking for Understanding

Courts may move or delay the trial to reduce pretrial publicity, limit the number of reporters in the courtroom or place strict controls on their conduct, isolate witnesses and jurors from the press, and sequester the jury.

6. Checking Consistency Are there any circumstances under which reporters should be required to reveal or protect their confidential information or sources? Explain your answer.

Critical Thinking

Some students may feel that when national security, public safety, or individual rights are jeopardized, reporters should not be shielded from mandatory disclosure. Others may argue that information that endangers someone should not be revealed.

Civil Liberties The issue of freedom of the press traces back to the New York v. John Peter Zenger case. Research this case and explain how the results of this case relate to freedom of the press issues today. Present your findings in a comparison chart.