First Amendment — Freedom of the Press

Amdt1.9.1 Overview of Freedom of the Press

Some have raised the question of whether the Free Speech Clause and the Free Press Clause are coextensive, with respect to protections for the media. A number of Supreme Court decisions considering the regulation of media outlets analyzed the relevant constitutional protections without significantly differentiating between the two clauses.¹ In one 1978 ruling, the Court expressly considered whether the “institutional press” is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Potter Stewart argued in a concurring opinion: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”² But, in a plurality opinion, Chief Justice Warren Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”³ The plurality ultimately concluded that the First Amendment did not grant media the privilege of special access to prisons.⁴

Several Supreme Court holdings firmly point to the conclusion that the Free Press Clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.⁵ Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.⁶ The Court has ruled that “[g]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”⁷ At the same time, the Court has recognized that laws targeting the press, or treating different subsets of media outlets differently, may sometimes violate the First Amendment.⁸ Further, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to heightened constitutional protections—that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Potter Stewart’s word.⁹

Amdt1.9.2 Protection of Confidential Sources

News organizations have claimed that the First Amendment compels a reporter’s privilege: an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.¹ The Court rejected the argument for a limited exemption permitting reporters to conceal their sources from a grand jury and to keep confidential certain information they obtain and choose at least for the moment not to publish in Branzburg v. Hayes.² Emphasizing the importance of the grand jury in creating a “[f]air and effective law enforcement [system] aimed at providing security for the person and property of the individual,” the Court concluded the public interest “in ensuring effective grand jury proceedings” overrode “the consequential, but uncertain, burden on news gathering” that would result from requiring reporters to respond to relevant grand jury questions.³ Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice Byron White for the Court, but the conditional nature of the alleged reporter’s privilege might not mitigate the deterrent effect, eventually leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.⁴

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.⁵ As for federal courts, Federal Rule of Evidence 501 provides that the common law generally governs a claim of privilege.⁶ The federal courts have not resolved whether the common law provides a journalists’ privilege.⁷

Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation, the Court held in Zurcher v. Stanford Daily.⁸ The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur. It observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.⁹

Amdt1.9.3 Access to Government Places and Papers

Conflict between constitutional rights is not uncommon. One difficult conflict to resolve is the conflict between a criminal defendant’s Fifth and Sixth Amendment rights to a fair trial and the First Amendment’s protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity¹ and during trials that were media spectaculars² have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of gag orders preventing press publication of information directly confronts the First Amendment’s bar on prior restraints,³ although the courts have a good deal more discretion in preventing the information from becoming public in the first place.⁴

When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings,⁵ the decision raised questions concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend the trials themselves.⁶ In a split ruling in Richmond Newspapers v. Virginia, the Court held that the First Amendment protected the right of access to criminal trials against the wishes of the defendant.⁷

Chief Justice Warren Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices.⁸ The Chief Justice emphasized the history showing that trials were traditionally open. This openness, moreover, was no “quirk of history” but “an indispensable attribute of an Anglo-American trial.”⁹ He explained that this characteristic flowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the “therapeutic value” to the public of seeing its criminal laws in operation, purging the society of the outrage felt at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained.¹⁰ Thus, the opinion concluded that “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.”¹¹ Ultimately, the plurality ruled that “in the context of trials . . . the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.”¹²

Justice William Brennan, joined by Justice Thurgood Marshall, followed a different route to the same conclusion. He argued that rather than solely protecting individual communications, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government.”¹³ He argued that in order to secure robust public debate and “other civic behavior,” the First Amendment must also ensure that debate is “informed,” protecting not only “communication itself but also . . . the indispensable conditions of meaningful communication.”¹⁴

Two years later, the Supreme Court articulated a standard for determining when the government’s or the defendant’s interests could outweigh the public right of access. Globe Newspaper Co. v. Superior Court¹⁵ involved a statute, unique to one state, that mandated the exclusion of the public and the press from trials during the testimony of a sex-crime victim under the age of 18. For the Court, Justice William Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness¹⁶ and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right recognized by the Court was not absolute; instead, in order to close all or part of a trial government must show that “the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.”¹⁷ The Court was explicit that the right of access was to criminal trials,¹⁸ leaving open the question of the openness of civil trials.

The Court next applied and extended the right of access in several other areas of criminal proceedings, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I¹⁹ that historically voir dire had been open to the public, and that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”²⁰ No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, forty-one of the forty-four days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, for example, in camera consideration of jurors’ requests for protection from publicity. In Waller v. Georgia,²¹ the Court held that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,”²² and noted that the need for openness at suppression hearings “may be particularly strong” because the conduct of police and prosecutor is often at issue.²³ And, in Press Enterprise II,²⁴ the Court held that there is a similar First Amendment right of the public to access most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused’s Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be “specific findings . . . demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.”²⁵ Openness of preliminary hearings was deemed important because, under California law, the hearings can be “the final and most important step in the criminal proceeding” and therefore may be “the sole occasion for public observation of the criminal justice system,” and also because the safeguard of a jury is unavailable at preliminary hearings.²⁶