The First Amendment: Freedom of the Press

Freedom of the press often presents a conflict of rights. On the one hand is the public's right to know, and on the other is the right of the government to secrecy in certain circumstances, the right of individuals to privacy, and the right of defendants to a fair trial. In addition, an individual may have personal and moral sensibilities that the press should not offend. Laws tackling these polarities fall under the headings of prior restraint and subsequent punishment.

Prior restraint

Laws that call for prior restraint are basically censorship laws that prevent the publication of information before it is officially released. The most famous case in recent years involved the Pentagon Papers in 1971. Daniel Ellsberg, a Defense Department contractor, leaked the 47-volume report on American policy in Vietnam to The New York Times and The Washington Post. When the Nixon administration learned that the newspapers were going to publish excerpts from the report, it sought a court injunction to prevent publication. The Supreme Court ruled that prior restraint was an unconstitutional restriction on the freedom of the press.

Subsequent punishment

Subsequent punishment laws hold publications accountable for the information they publish. They may influence a publisher to think seriously about whether a story is libelous, slanderous, or obscene. Publishing statements that are malicious, untrue, and harmful to a person's reputation is called libel. When such statements are spoken, they are called slander. Celebrities and elected officials are often described negatively in the press. The Supreme Court has ruled that such stories can be considered libelous or slanderous only if it can be proved that they were published without regard for the truth or falsity of the statements. This is a difficult standard, and tabloids thrive on making outrageous claims about public figures. Recent cases have narrowed the definition of public figures, compelling the press to prove it was not malicious in making allegedly libelous statements.

Obscene materials

The Supreme Court has also maintained that obscene materials, in words or pictures, are not protected under the First Amendment. The problem is defining what is obscene. The Warren Court adopted a variable standard that set specific limits on obscenity based on the circumstances of publication and distribution. Pornography sold in an adult bookstore that limits entry to persons 21 years of age and older is legal, but showing a pornographic film to an unsuspecting audience is not. Efforts to find a clearer standard have not been successful. The Court has not been willing to turn the definition of obscenity entirely over to community standards.

The Court has consistently found child pornography unacceptable. The Internet has proved a difficult challenge to First Amendment issues. Congress's attempts to protect minors from pornographic material available through the Internet usually failed to win approval from the Court. An important exception was the Children's Internet Protection Act (2000), which requires schools and libraries receiving federal funds for technology to install filtering software on their computers to block access to adult materials.