Text 27: freedom of the press

In writing the First Amendment, the Founders of the Constitution thought of the press as printed material — newspapers, books, and pamphlets. They could not foresee the growth of technology that has created new instruments of mass communication — and new issues regarding freedom of the press.

Freedom of the press is closely related to freedom of speech. It moves free speech one step further by allowing opinions to be written and circulated. The press is important because it is the principal way people get information. In today's world the press includes magazines, radio, and television along with newspapers because of their roles in spreading news and opinions.

In many nations prior restraint — censorship of information before it is published — is a common way for government to control information and limit freedom. In the United States, however, the Supreme Court has ruled that the press may be censored in advance only in cases relating directly to national security. The following Supreme Court decision illustrates this principle.

A case heard in 1931 concerned a Minnesota law prohibiting the publication of any "malicious, scandalous, or defamatory" newspapers or magazines. An acid-tongued editor of a Minneapolis paper had called local officials "gangsters" and "grafters." Acting under the Minnesota law, local officials obtained a court injunction to halt publication of the weekly. The Supreme Court ruled the Minnesota law unconstitutional because it involved prior restraint.

For years this case defined the Supreme Court's position on censorship. The Court stressed that a free press means freedom from government censorship.

Text 28: free press and fair trial

In recent years the First Amendment right of a free press and the Sixth Amendment right to a fair trial have sometimes conflicted. Does the press have the right to publish information that might influence the outcome of a trial? Can courts issue orders that limit news gathering in order to increase the chances of a fair trial? Do reporters have the right to withhold sources of information that may be important to a trial?

Before and during a trial, news stories about the crime can make it difficult to secure a jury capable of fairly deciding the case. In 1954, the Supreme Court overturned the conviction of Samuel H. Sheppard, for just such reasons.

A prominent Cleveland physician, Sheppard was convicted of killing his wife. The case had attracted sensational press coverage. Pretrial news reports practically called Sheppard guilty. During the trial reporters interviewed witnesses and published information damaging to Sheppard.

The Supreme Court ruled that press coverage had interfered with Sheppard's right to a fair trial. Sheppard was later found not guilty. In the Sheppard decision, the Court described several measures judges might take to restrain press coverage of a trial. These included: reducing pretrial publicity; limiting the number of reporters in the courtroom; placing controls on reporters' conduct in the courtroom; isolating witnesses and jurors from the press; and having the jury sequestered, or held in custody, until the trial is over.

On the other hand, in 1972, the Supreme Court ruled the First Amendment does not give special privileges to news reporters. Reporters, the Court said, "like other citizens, must respond to relevant questions put to them in the course of investigation or criminal trial." The Court added that any special exemptions must come from Congress and the states.