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US History Companion:

Freedom Of The Press

Any discussion of freedom of the press must distinguish freedom in fact from legal freedom. The principle of freedom of the press as a constraint on government actions against the press can differ from the amount of freedom the press actually exercises at a given time. On the one hand, various social, political, and economic forces may serve to make the press freer in fact than it is in law. Conversely, those same forces may substantially curtail the exercise of a legal freedom.

This article addresses only the development of the principle of freedom of the press, according to which government control of the press is subject to political, legal, or constitutional constraints greater than those applicable to other forms of government action. In this sense of freedom of the press, the principle in the United States evolved from English thought. Anticensorship themes had been sounded early in the seventeenth century, but the work that had the most lasting influence was John Milton's Areopagitica: A Speech for the Liberty of Unlicensed Printing to the Parliament of England (1644). Although Milton argued only for elimination of licensing in advance of publication and did not object to prosecution thereafter, and although the freedom he advocated did not extend to Catholics and others he viewed as beyond the pale, his eloquent objection to what we now call "prior restraint" has had lasting influence.

English pleas for freedom of the press increased in the early part of the eighteenth century. Among the most prominent were John Trenchard and Thomas Gordon's pseudonymous Cato's Letters, which went beyond Milton in arguing against prosecutions for seditious and criminal libel as well as against licensing. These and similar writings had great influence in the colonies, and the arguments exemplified by Cato's Letters surrounded the trial in 1735 of John Peter Zenger, the most important colonial precursor to later American developments.

Zenger was the publisher of the New York Weekly Journal, which had printed harsh criticisms of Governor William Cosby of the Province of New York. Zenger was prosecuted for seditious libel, and consistent with the law at the time the jury was instructed to consider not whether the work was actually seditious (an issue then considered a matter of law for the judge and not one of fact for the jury) but only the questions of whether Zenger had published the work and whether it referred to Cosby. Nevertheless, the jury disregarded these limitations and acquitted Zenger. That acquittal represented the assertion of popular power against the monarchy, in contrast to the modern understanding of freedom of the press as protection against popular control as much as against particular government officials.

Against this background there remains controversy about the intention underlying the First Amendment, which provides that "Congress shall make no law ... abridging the freedom of speech, or of the press." Although a common understanding takes this to embody an intention to eliminate the law of seditious libel, there is strong evidence that the amendment (as well as similar provisions in various state constitutions) was intended to embody the Miltonian idea, also found in Blackstone's Commentaries, that only prior restraints like licensing were to be prohibited, with prosecutions for seditious libel untouched by the new Bill of Rights.

As a matter of constitutional law, these issues were not settled until well into the twentieth century, although political discourse, as shown by the negative reaction to and ultimate repeal of the Sedition Act of 1798, gradually assimilated the view that not only licensing but also subsequent punishment of the press for criticizing government and its officials were inconsistent with the view of the press as an institutionalized counterweight to government power. This political understanding, which grew sporadically throughout the nineteenth century, was supported by the development of the common law privilege of fair comment, which substantially limited the availability of civil libel actions against the press for criticizing gov- ernmental officials.

Still, it remained possible for Justice Oliver Wendell Holmes, Jr., to note as late as 1907 that whether the First Amendment prohibited anything other than a prior restraint remained an open question. When the Supreme Court in 1919 started to put teeth into the First Amendment, it increasingly held that that protection went far beyond prohibiting prior restraints. But the historical legacy remains, for prior restraints are the least justifiable form of restriction on the press. When the Court in 1931 in Near v. Minnesota held impermissible an injunction against a defamatory scandal sheet called the Saturday Press, it established a virtually insurmountable legal standard for attempts to license the press or to enjoin publications in advance. This standard had its most famous application in 1971, when in a widely publicized decision (New York Times Co. v. United States) the Supreme Court held that government attempts to restrain the publication of the Pentagon Papers was constitutionally impermissible, despite government claims that publication would impede the military's efforts in Vietnam, and despite the fact that the documents then in possession of the New York Times and other newspapers had been unlawfully removed from the Defense Department. This case established the principle that prior restraints are for all practical purposes impossible to justify.

By the time the case had been decided, however, the press had also become essentially free from subsequent punishment. In 1936 the Supreme Court struck down a punitive tax on the press that Louisiana governor Huey Long had imposed in retaliation for criticism. And in 1964, in a case that transformed the nature of press freedom in the United States, the Court decided that libel actions based on criticism of public officials (and subsequently all public figures) could not be maintained unless the official was able to show not only that the criticism was factually false but that it had been published with prior knowledge of its falsity. This is such an enormous burden that the press now is largely free from fear of criminal punishment or civil liability based on reporting or commentary on matters of public concern.

As a result, arguments about freedom of the press have turned away from questions of punishment to questions of press privileges and press access. The arguments now commonly concern whether journalists shall be immune from subpoenas or search warrants seeking to discover the products of their investigation, and whether the press shall have access to government information not otherwise available to the public. Although the Supreme Court has largely rejected these arguments as First Amendment claims, the arguments have often persuaded legislatures to enact shield laws, which grant partial immunities from subpoena, and open meeting or freedom of information laws, which give the press greater access to details about governmental actions. Although it is inevitable that the press will always want more information and the government will always want to provide less, the current press freedom in the United States is such that much that happens in government is more widely known and subject to criticism than anywhere else in the world.

Bibliography:

Leonard W. Levy, Emergence of a Free Press (1985); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (1986).

Author:

Frederick Schauer

See also Bill of Rights; Freedom of Speech; Zenger Trial.


 
 
Columbia Encyclopedia: freedom of the press,
liberty to print or to otherwise disseminate information, as in print, by broadcasting, or through electronic media, without prior restraints such as licensing requirements or content review and without subsequent punishment for what is said. Freedom of the press, which has been limited not only by governments but at times by churches, is absolute in no country. In modern democracies it is rarely attacked by overt forms of censorship but is often compromised by governments' ability to withhold information, by self-censorship in reaction to various pressures, by selective government “leaking” of information or disinformation, and by other factors.

In the United States, freedom of the press and the broader freedom of speech (see speech, freedom of) are protected by the First Amendment to the Constitution and are considered fundamental rights of the people. In practice, though, some kinds of speech and publication (e.g., obscenity or violations of copyright) are considered outside the amendment's purview, and others, like commercial speech (advertising or product claims), receive a reduced level of protection. In addition, broadcasters are subject to government licensing requirements. The protections to be afforded users of on-line computer services, the Internet, and other new means of publication are the focus of a developing debate; in 1996 a federal district court panel struck down the new Communications Decency Act, holding that Internet communications were entitled to the same degree of protection as printed communications.

History

Historically, restriction of the press has occurred in two ways. The first may be either censorship or mandatory licensing by the government in advance of publication; the second is punishment for printed material, especially that considered by the government to be seditious libel, i.e., material that may “excite disaffection” against constituted authority (see lese majesty). Censorship of the press began not long after the invention of the printing press. Pope Alexander VI issued (1501) a notice requiring printers to submit copy to church authorities before publication, in order to prevent heresy. Penalties for bypassing the censors included fines and excommunication.

Early English Restrictions and Developments

In England, where the struggle for press freedom first began, the appearance of unauthorized publications resulted in a royal proclamation (1534) requiring prepublication licensing. Stronger restrictive measures were taken by the later Tudor and Stuart monarchs, and censorship came to be applied more to political criticism than religious heresy. John Milton, in his Areopagitica (1644), attacked the licensing law and called on Parliament to suppress offensive publications after their appearance if necessary. Milton's objections to prior restraint eventually became a cornerstone of press freedom, but it was not until 1695 that the licensing and censorship laws were abolished.

Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government. There was no clear definition of what constituted seditious libel, and in the 18th cent. the printing of parliamentary debates had to be disguised as debates between classical figures. At this time, both true and false criticism of the government was considered libel. In fact, legal doctrine proclaimed that “the greater the truth the greater the libel.” Only in the mid-19th cent. did truth become admissible as a defense in English libel cases.

In the United States

The defense of John Peter Zenger against libel charges in 1735 is often seen as the cornerstone of American press freedom. After the American Revolution, several states provided for freedom of the press, and the First Amendment (1791) to the U.S. Constitution declared that “Congress shall make no law...abridging the freedom of speech or of the press.” Whether these acts were intended to prohibit prosecution for seditious libel or merely to prohibit prior restraint has been a matter of controversy. In reaction to the Sedition Act (1798), a more libertarian interpretation of the First Amendment became dominant, which saw it as rejecting seditious libel as a crime. The First Amendment was later (beginning in the 1920s) applied to all the states by judicial interpretation of the Fourteenth Amendment (1868).

Wartime situations often present challenges to the legal limits of press freedom. What was looked upon as irresponsible reporting during the Civil War led to attempts by civil and military authorities to impose restrictions upon the press. Appeals by the War Department for publishers to voluntarily suppress news that was strategic to the war were, however, largely ineffective. During World War I, near hysteria over the possibility of sabotage led Congress to pass the Espionage Acts (1917) and the Sedition Act (1918). These acts limited freedom of the press to such an extent that not only was censorship exercised against pro-German publications but also against German-language publications and those advocating socialism or pacifism.

In 1931, the Supreme Court, in Near v. Minnesota, for the first time declared almost all forms of prior restraint to be unconstitutional. In World War II the Office of Censorship, under the direction of Byron Price, expanded upon techniques developed by George Creel's Censorship Board of World War I. The new office supervised (1941–45) the most comprehensive censorship in U.S. history. Compliance was voluntary, however, and was based on the office's suggestion to editors on topics to avoid. Because Price and his assistants were respected journalists themselves, newspapers and journals cooperated. Similar cooperation was accorded to the Office of War Information, which controlled the flow of news from government agencies. As a result, the government rarely took punitive action.

After the war, many news organizations undertook campaigns against secrecy in government, maintaining that the withholding of public records threatens freedom of the press. As world tensions heightened during the cold war in the 1950s and 60s, defense officials often protested that the mere absence of war did not justify peacetime openness in the press.

In the late 1960s and early 70s, there were frequent charges and countercharges between journalists and government officials concerning the withholding of information on the Vietnam War by the government. The only recognized grounds for prior restraint, national security, was tested in 1971 when Daniel Ellsberg, a former government employee who believed that information that should be made public was being withheld by the government, released the Pentagon Papers, a collection of classified government documents concerning the Vietnam War. The government tried to block their publication, but the U.S. Supreme Court, in New York Times Co. v. United States (1971), permitted their release.

The First Amendment has not been extended to the gathering as well as the publication of news. The experience of the Vietnam War led the U.S. government to restrict the access of reporters in combat areas in subsequent military encounters. This practice, used during the 1983 invasion of Grenada and the 1991 Persian Gulf War, was bitterly resented by many reporters. In domestic affairs, although a number of states have passed shield laws, which permit journalists to refuse to disclose confidential information and sources to law-enforcement bodies, the U.S. Supreme Court has recognized no unrestricted right of press confidentiality.

Bibliography

See P. Lahav, Press Law in Modern Democracies (1984); W. W. Van Alsytne, Interpretations of the First Amendment (1984); L. Levy, The Emergence of a Free Press (1985).

 
Law Encyclopedia: Freedom of the Press
This entry contains information applicable to United States law only.

The right, guaranteed by the First Amendment to the U.S. Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from prior restraints on publication and freedom from censorship.

The First Amendment to the U.S. Constitution reads, in part, "Congress shall make no law … abridging the freedom of speech, or of the press." The courts have long struggled to determine whether the Framers of the Constitution intended to differentiate press freedom from speech freedom. Most have concluded that freedom of the press derives from freedom of speech. Although some cases and some legal scholars, including Justice Potter Stewart, of the U.S. Supreme Court, advocate special press protections distinct from those accorded to speech, most justices believe that the Freedom of the Press Clause has no significance independent of the Freedom of Speech Clause.

The Court explained its reasoning in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). According to Chief Justice Warren E. Burger, conferring special status on the press requires that the courts or the government determine who or what the press is and what activities fall under its special protection. Burger concluded that the free speech guarantees of the First Amendment adequately ensure freedom of the press, and that there is no need to distinguish between the two rights:

Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination.

The Court has generally rejected requests to extend to the press privileges and immunities beyond those available to ordinary citizens. In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), it held that a journalist's privilege to refuse to disclose information such as the names of informants is no broader than that enjoyed by any citizen. As long as an inquiry is conducted in good faith, with relevant questions and no harassment, a journalist must cooperate.

Justice Stewart's dissent in Branzburg urged the Court to find that a qualified journalistic privilege exists unless the government is able to show three things: (1) probable cause to believe that the journalist possesses information that is clearly relevant, (2) an inability to obtain the material by less intrusive means, and (3) a compelling interest that overrides First Amendment interests. In an unusual break with tradition, several circuit courts have applied Stewart's test and ruled in favor of journalists seeking special First Amendment protection. Nonetheless, the Supreme Court has steadfastly held to its decision in Branzburg, and shows no sign of retreating from its position that the First Amendment confers no special privileges on journalists.

Laws that affect the ability of the press to gather and publish news are suspect, but not automatically unconstitutional. In Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991), reporters for two Twin Cities newspapers were sued for breach of contract when they published the name of their source after promising confidentiality. The reporters claimed that the law infringed their First Amendment freedom to gather news unencumbered by state law. The Court held that the law did not unconstitutionally impinge their rights because its enforcement imposed only an incidental burden on their ability to gather and report information. Writing for the majority, Justice Byron R. White said that laws that apply to the general public and do not target the press do not violate the First Amendment simply because their enforcement against members of the press has an incidental burden on their ability to gather and report the news: "[E]nforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations." The Cohen decision indicates the Court's continued unwillingness to extend special First Amendment protection to journalists.

Generally, the First Amendment prohibits prior restraint, that is, restraint on a publication before it is published. In a landmark decision in Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court held that the government could not prohibit the publication of a newspaper for carrying stories that were scandalous or scurrilous. The Court identified three types of publications against which a prior restraint might be valid: those that pose a threat to national security, those that contain obscene materials, and those that advocate violence or the overthrow of the government.

The government argued that publication of certain material posed a threat to national security in the so-called Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). Here, the government sought an injunction against newspapers planning to publish classified material concerning U.S. policy in Vietnam. The Court found that the government had not proved an overriding government interest, or an extreme danger to national security if the material were published. The justices reiterated their position that a request for a prior restraint must overcome a heavy presumption of unconstitutionality.

The Court is steadfast in its holding that prior restraints are among the most serious infringements on First Amendment freedoms and that attempts to impose them must be strictly scrutinized. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), the Court overturned a state court's attempt to ban the press from a criminal trial. The Court held that gag orders, although not per se invalid, are allowable only when there is a clear and present danger to the administration of justice.

Freedom of the press, like freedom of speech, is not absolute. Notwithstanding the limitations placed on it, the press exercises enormous power and influence, and is burdened with commensurate responsibility. Because journalists have access to more information than the average individual, they serve as the eyes, ears, and voice of the public. Some legal scholars even argue that the press is an important force in the democratic system of checks and balances.

See: Broadcasting; Cameras in Court; Fairness Doctrine; Federal Communications Commission; Libel and Slander; Mass Communications Law; New York Times v. Sullivan; New York Times v. United States; Pretrial Publicity; Shield Laws; Trial.

 
Politics: freedom of the press

The right to circulate opinions in print without censorship by the government. Americans enjoy freedom of the press under the First Amendment to the Constitution.

 
Wikipedia: freedom of the press
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Freedom of the Press (or Press Freedom) is the guarantee by a government of free public press for its citizens and their associations, extended to members of news gathering organizations, and their published reporting. It also extends to news gathering, and processes involved in obtaining information for public distribution. Not all countries are protected by a bill of rights or the constitutional provision pertaining to Freedom of the Press.

With respect to governmental information, a government distinguishes which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest.

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In developed countries, freedom of the press implies that all people should have the right to express themselves in writing or in any other way of expression of personal opinion or creativity. The Universal Declaration of Human Rights indicates: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without ineive, and impart information and ideas through any media regardless of frontiers"

This philosophy is usually accompanied by legislation ensuring various degrees of freedom of scientific research (known as scientific freedom), publishing, press and printing the depth to which these laws are entrenched in a country's legal system can go as far down as its constitution. The concept of freedom of speech is often covered by the same laws as freedom of the press, thereby giving equal treatment to media and individuals.

Besides said legal environment, some non-governmental organizations use more criteria to judge the level of press freedom around the world. Reporters Without Borders considers the number of journalists murdered, expelled or harassed, and the existence of a state monopoly on TV and radio, as well as the existence of censorship and self-censorship in the media, and the overall independence of media as well as the difficulties that foreign reporters may face. Freedom House likewise studies the more general political and economic environments of each nation in order to determine whether relationships of dependence exist that limit in practice the level of press freedom that might exist in theory. So the concept of independence of the press is one closely linked with the concept of press freedom.

The media as a necessity for the government

Elizabeth's notion of the press as the fourth branch of government is sometimes used to compare the press (or media) with Montesquieu's three branches of government, namely an addition to the legislative, the executive and the judiciary branches. Edmund Burke is quoted to have said: "Three Estates in Parliament; but in the Reporters' Gallery yonder, there sat a Fourth estate more important far than they all."

The development of the Western media tradition is rather parallel to the development of democracy in Europe and the United States. On the ideological level, the first pioneers of freedom of the press were the liberal thinkers of the 18th and 19th centuries. They developed their ideas in opposition to the monarchist tradition in general and the divine right of kings in particular. These liberal theorists argued that freedom of press was a right claimed by the individual and grounded in natural law. Thus, freedom of the press was an integral part of the individual rights promoted by liberal ideology (see the History section below).

Freedom of the press was (and still is) assumed by many to be a necessity to any democratic society. Other lines of thought later argued in favor of freedom of the press without relying on the controversial issue of natural law; for instance, freedom of expression began to be regarded as an essential component of the social contract (the agreement between a state and its people regarding the rights and duties that each should have to the other).

Status of press freedom worldwide

Worldwide press freedom index

Freedom of the press worldwide according to Reporters Without Borders.
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Freedom of the press worldwide according to Reporters Without Borders.

Every year, the Reporters Without Borders organization establishes a ranking of countries in terms of their freedom of the press. The list is based on responses to surveys sent to journalists that are members of partner organisations of the RWB, as well as related specialists such as researchers, jurists and human rights activists. The survey asks questions about direct attacks on journalists and the media as well as other indirect sources of pressure against the free press, such as pressure on journalists by non-governmental groups. RWB is careful to note that the index only deals with press freedom, and does not measure the quality of journalism.

In 2003, the countries where press was the most free were Finland, Iceland, the Netherlands and Norway.

In 2004, apart from the above countries, Denmark, Ireland, Slovakia, and Switzerland were tied at the top of the list, followed by New Zealand and Latvia. The countries with the least degree of press freedom were ranked with North Korea having the worst, followed by Burma, Turkmenistan, People's Republic of China (mainland only), Vietnam, Nepal, Saudi Arabia, and Iran.

Non-democratic states

According to Reporters Without Borders, more than a third of the world's people live in countries where there is no press freedom. Overwhelmingly, these people live in countries where there is no system of democracy or where there are serious deficiencies in the democratic process.

Freedom of the press is an extremely problematic concept for most non-democratic systems of government since, in the modern age, strict control of access to information is critical to the existence of most non-democratic governments and their associated control systems and security apparatus. To this end, most non-democratic societies employ state-run news organisations to promote the propaganda critical to maintaining an existing political power base and suppress (often very brutally, through the use of police, military, or intelligence agencies) any significant attempts by the media or individual journalists to challenge the approved "government line" on contentious issues. In such countries, journalists operating on the fringes of what is deemed to be acceptable will very often find themselves the subject of considerable intimidation by agents of the state. This can range from simple threats to their professional careers (firing, professional blacklisting) to death threats, kidnapping, torture, and assassination.

Reporters Without Borders reports that, in 2003, 42 journalists lost their lives pursuing their profession and that, in the same year, at least 130 journalists were in prison as a result of their occupational activities.

In 2005, 63 journalists and 5 media assistants were killed worldwide.

History

England

The English revolution of 1688 resulted in the supremacy of Parliament over the Crown and, above all, the right of revolution. The main theoretical inspirator of Western liberalism was John Locke. Having decided to grant some of his basic freedoms in the state of nature (natural rights) to the common good, the individual placed some of his rights in trusteeship with the government. A social contract was entered into by the people, and the Sovereign (i. e. government) was instructed to protect these individual rights on behalf of the people, argues John Locke in his book Two Treatises of Government.

Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license. Fifty years earlier, at a time of civil war, John Milton wrote his pamphlet Areopagitica. In this work Milton argued forcefully against this form of government censorship and parodied the idea, writing "when as debtors and delinquents may walk abroad without a keeper, but unoffensive books must not stir forth without a visible jailer in their title." Although at the time it did little to halt the practice of licensing it would be viewed later a significant milestone in press freedom.

Milton's central argument was that the individual is capable of using reason and distinguishing right from wrong, good from bad. In order to be able to exercise this ration right, the individual must have unlimited access to the ideas of his fellow men in “a free and open encounter”. From Milton’s writings developed the concept of “the open market place of ideas”: When people argue against each other, the good arguments will prevail. One form of speech that was widely restricted in England was the law of seditious libel that made criticizing of the government a crime. The King was above public criticism and that statements critical of the government were forbidden, according to the English Court of the Star Chamber. Truth was not a defense to seditious libel because the goal was to prevent and punish all condemnation of the government.

John Stuart Mill approached the problem of authority versus liberty from the viewpoint of a 19th century utilitarian: The individual has the right of expressing himself so long as he does not harm other individuals. The good society is one in which the greatest number of persons enjoy the greatest possible amount of happiness. Applying these general principles of liberty to freedom of expression, Mill states that if we silence an opinion, we may silence the truth. The individual freedom of expression is therefore essential to the well-being of society.

Mill’s application of the general principles of liberty is expressed in his book On Liberty: "If all mankind minus one, were of one opinion, and one, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind".

Nazi Germany

Nazi propaganda was used to glorify Adolf Hitler and stifle dissenting viewpoints.
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Nazi propaganda was used to glorify Adolf Hitler and stifle dissenting viewpoints.

The dictatorship of Adolf Hitler largely suppressed freedom of the press through Joseph Goebbels' Propaganda Ministry. As the Ministry's name implies, propaganda did not carry the negative connotations that it does today (or did in the Allied countries); how-to manuals were openly distributed by that same ministry explaining the craft of effective propaganda. The Ministry also acted as a central control-point for all media, issuing orders as to what stories could be run and what stories would be suppressed. Anyone involved in the film industry -- from directors to the lowliest assistant -- had to sign an oath of loyalty to the Nazi Party, due to opinion-changing power Goebbels perceived movies to have. (Goebbels himself maintained some personal control over every single film made in Nazi Europe.) Journalists who crossed the Propaganda Ministry were routinely imprisoned or shot as traitors.

India

The Indian Constitution, while not mentioning the word "press", provides for "the right to freedom of speech and expression" (Article 19(1) a). However this right is subject to restrictions under subclause (2), whereby this freedom can be restricted for reasons of "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt of court, defamation, or incitement to an offence". Laws such as the Official Secrets Act and Prevention of Terrorism Act [2] (PoTA) have been used to limit press freedom. Under PoTA, person could be detained for up to six months for being in contact with a terrorist or terrorist group. PoTA was repealed in 2006, but the Official Secrets Act 1923 continues.

For the first half-century of independence, media control by the state was the major constraint on press freedom. Indira Gandhi famously stated in 1975 that All India Radio is "a Government organ, it is going to remain a Government organ..." [3] With the liberalization starting in the 1990s, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government. Organizations like Tehelka and NDTV have been particularly influential, e.g. in bringing about the resignation of powerful Haryana minister Venod Sharma.

United States

Main article: Freedom of speech in the United States

John Hancock was the first person to write newspapers in the British colonies in North America were published "by authority," that is, under license from and as the mouthpiece of the colonial governors. The first regularly published newspaper was the Boston News-Letter of John Campbell, published weekly beginning in 1704. The early colonial publishers were either postmasters or government printers, and therefore unlikely to challenge government policies.

The first independent newspaper in the colonies was the New-England Courant, published in Boston by James Franklin beginning in 1721. A few years later, Franklin's younger brother, Benjamin, purchased the Pennsylvania Gazette of Philadelphia, which became the leading newspaper of the colonial era.

During this period, newspapers were unlicensed, and able freely to publish dissenting views, but were subject to prosecution for libel or even sedition if their opinions threatened the government. The notion of "freedom of the press" that later was enshrined in the United States Constitution is generally traced to the seditious libel prosecution of John Peter Zenger by the colonial governor of New York in 1735. In this instance of jury nullification, Zenger was acquitted after his lawyer, Andrew Hamilton, argued to the jury (contrary to established English law) that there was no libel in publishing the truth. Yet even after this celebrated case, colonial governors and assemblies asserted the power to prosecute and even imprison printers for publishing unapproved views.

A U.S. Postage Stamp commemorating freedom of the press.
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A U.S. Postage Stamp commemorating freedom of the press.

During the American Revolution, a free press was identified by Revolutionary leaders as one of the elements of liberty that they sought to preserve. The Virginia Declaration of Rights (1776) proclaimed that "the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments." Similarly, the Constitution of Massachusetts (1780) declared, "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth." Following these examples, the First Amendment to the United States Constitution restricted Congress from abridging the freedom of the press and the closely associated freedom of speech.

John Locke’s ideas had inspired both the French and American revolutions. Thomas Jefferson wanted to unite the two streams of liberalism, the English and the French schools of thought. His goal was to create a government that would provide both security and opportunity for the individual. An active press was essential as a way of educating the population. In order to be able to work freely, the press must be free from control by the state. Jefferson was a person who himself suffered great calumnies of the press. Despite this, in his second inaugural address, he proclaimed that a government that could not stand up under criticism deserved to fall.

Jefferson said: "No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all avenues of the truth".

In 1931, the U.S. Supreme Court decision in Near v. Minnesota used the 14th Amendment to apply the freedom of the press to the States. Other notable cases regarding free press are:

Notable exceptions

  • In 1798, not long after the adoption of the Constitution, the governing Federalist Party attempted to stifle criticism by means of the Alien and Sedition Acts. (It was notable that the Sedition Act made criticism of Congress, and of the President, a crime, but not criticism of the Vice-President. Jefferson, a non-Federalist, was Vice-President at the time the Act was passed. [citation needed]) These restrictions on freedom of the press proved very unpopular and worked against the Federalists. Thomas Jefferson was among those who opposed the Acts, and he was elected President in the election of 1800. Jefferson then pardoned all those convicted under the Acts. He made it a principle not to ask what they had done, but only whether they had been charged under the Acts.

    In his first Inaugural Address in 1801 he reiterated his longstanding commitment to freedom of speech and of the press: "If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."

  • The Espionage Act of 1917 and the Sedition Act of 1918, which amended it, imposed restrictions on the free press during wartime. It carried fines of $10,000 and up to 20 years imprisonment for people publishing "... disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States ..." In Schenck v. United States (1919), the Supreme Court upheld the laws, setting the "Clear and present danger" standard. Congress repealed both laws in 1921, and Brandenburg v. Ohio (1969) revised the "Clear and present danger" test to the "Imminent lawless action" test, which is less restrictive.
  • 1988: Hazelwood School District vs. Kuhlmeier: The Supreme Court upheld that the principal of a school has the right to review and block controversial articles of a school paper funded by the school and published in the school's name.
  • In the United States in 2005, interpretation of the Bipartisan Campaign Reform Act may consider political statements as being the equivalent of campaign donations. Because access to Internet statements are weakly controlled, the campaign value of statements is not known in advance and a high ultimate value may trigger large fines for violations. This particularly threatens Internet statements by individuals, and ambiguous definitions of membership in the press make the possible effects ambiguous.

Implications of new technologies

Many of the traditional means of delivering information are being slowly superseded by the increasing pace of modern technological advance. Almost every conventional mode of media and information dissemination has a modern counterpart that offers significant potential advantages to journalists seeking to maintain and enhance their 'freedom of speech'. A few simple examples of such phenomena include:

  • Terrestrial television versus satellite television: Whilst terrestrial television is relatively easy to manage and manipulate, satellite television is much more difficult to control as journalistic content can easily be broadcast from other jurisdictions beyond the control of individual governments. An example of this in the Middle East is the satellite broadcaster Al Jazeera. This Arabic language media channel operates out of the 'relatively liberal' state of Qatar, and often presents views and content that are problematic to a number of governments in the region and beyond. However, because of the increased affordability and miniaturisation of satellite technology (e.g. dishes and receivers) it is simply not practicable for most states to control popular access to the channel.
  • Web-based publishing (e.g., blogging) vs. traditional publishing: Traditional magazines and newspapers rely on physical resources (e.g. offices, printing presses) that can easily be targeted and forced to close down. Web-based publishing systems can be run using ubiquitous and inexpensive equipment and can operate from any global jurisdiction. To get control over web publications, nations and organisations are using Geolocation and Geolocation software.
  • Voice over Internet protocol (VOIP) vs. conventional telephony: Although conventional telephony systems are easily tapped and recorded, modern VOIP technology can employ sophisticated encryption systems to evade central monitoring systems. As VOIP and similar technologies become more widespread they are likely to make the effective monitoring of journalists (and their contacts and activities) a very difficult task for governments.

Naturally, governments are responding to the challenges posed by new media technologies by deploying increasingly sophisticated technology of their own (a notable example being China's attempts to impose control of through a state run internet service provider that controls access to the Internet) but it seems that this will becomes an ever increasingly difficult task as nimble, highly motivated journalists continue to find ingenious novel ways to exploit technology and stay one step ahead of the generally slower moving government institutions that they necessarily do battle with.

Organizations for press freedom

See also

Notes

  1. ^ http://www.rsf.org/rubrique.php3?id_rubrique=280 About Reporters Without Borders
  2. ^ The Prevention of Terrorism Act 2002.
  3. ^ (July 1982) "Freedom of the Press". PUCL Bulletin,. People's Union for Civil Liberties. 

References

  • Starr, Paul (2004). The Creation of the Media: Political Origins of Modern Communications. New York: Basic Books. ISBN 0-465-08193-2. 

External links


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