Freedom of the press is a Constitutional guarantee contained in the First Amendment, which in turn is part of the Bill of Rights. This freedom protects the right to gather information and report it to others.
While at the time of ratification in 1791, the free press clause addressed newspapers, it now applies to all forms of newsgathering and reporting, independent of medium. Television, radio and online journalists are protected even though they don’t use printing presses.
The nation’s founders believed a free press to be one of the basic freedoms necessary for a new, democratic society. They acknowledged that belief in state charters and constitutions, and ultimately in a set of amendments, the Bill of Rights, to the U.S. Constitution that guaranteed certain rights of citizens and states.
Freedom of the press remains a precious and vital liberty, ensuring that people can criticize public officials, expose government corruption, and distribute material on virtually any subject imaginable, free from most prior restraints and other forms of censorship. It is notable that though 18th century newspapers were often highly biased and often irresponsible in their claims, the nation’s leaders saw protection of the press as a valuable check on potential corruption and official misdeeds.
Freedom of the press guarantees the ‘voice of the people’
Throughout the nation’s history, newspapers have been the medium through which Americans have most fully realized the ideal of a free press. In his 1893 book, “The Making of a Newspaper,” Melville Phillips wrote a plainspoken, yet eloquent, description of a newspaper that applies equally well to new media of today: “It looks so cheap and — when one has gleaned the news from it — so worthless; certainly the making of it does not seem to have cost much in time, labor, brains or money [but] the influence of American journalism reaches into every American home… A popular newspaper… is in a sense, the voice of the people.”
In a totalitarian society, secret trials and imprisonment often are major tools of repression; in a democratic society, a free press is positioned in virtually every community and every state to keep watch on the local government, police, the courts and the criminal justice system. A press that is not controlled by the government sits in the nation’s courtrooms as a guardian and watchdog over the people’s rights to an independent judiciary, a fair trial and equal protection under the law.
Over the course of American history, newspapers did not represent all readers, but diversity came from specialized newspapers and journals that met the needs of ethnic, religious and racial groups. The anti-slavery North Star, created in 1847 by Frederick Douglass, El Clamor Publico, published by Francisco Ramirez beginning in 1855, and the Jewish Daily Forward, begun in 1897 by Russian émigré Abraham Cahan, are just a few of the first examples that gave voice to groups of Americans outside the so-called mainstream.
Key First Amendment decisions about freedom of the press
The First Amendment that we know today largely emerged from pivotal U.S. Supreme Court decisions in the 20th century. The First Amendment wasn’t thought to apply to the states until the 1925 case Gitlow v. New York in which the U.S. Supreme Court found that the freedoms of press and speech applied to the states through the 14th Amendment. This also set the stage for the incorporation of other amendments to apply to the states.
Among the cases that clarified and expanded the scope of First Amendment rights:
- Near v. Minnesota (1931), in which the court rejected the notion of prior restraint on publication and decided that freedom of the press applied to the states via the due process clause of the 14th Amendment;
- Grosjean v. American Press Co.(1936), in which the court struck down a license tax that applied differentially to newspapers with large circulation in Louisiana.
- New York Times Co. v. Sullivan (1964), in which the court held the press is largely free from any adverse act or court action if it attempts truthfully to report news of public concern; and when the news involves a public official, even erroneous reportage has a high degree of protection.
- Miami Herald Publishing Co. v. Tornillo (1974), which struck down a state law requiring newspapers to publish replies to articles criticizing political candidates.
- Richmond Newspapers, Inc. v. Virginia (1980), in which the court affirmed a First Amendment right for both the public and the press to attend criminal trials.
- New York Times Co. v. United States (1971), the Pentagon Papers case, in which the court reiterated the strong presumption against prior restraint of publication and rejected the Nixon administration’s attempt to block The New York Times, The Washington Post and other papers from printing largely historical documents about U.S. involvement in Vietnam, even though the government cited national security concerns.
The Pentagon Papers decision was particularly significant because it showed that the court was willing to protect freedom of the press from infringement by the national executive asserting claims of national security. The justices indicated that the First Amendment ruled out prior restraint of almost all publications other than those that posed a direct threat to ongoing military operations, such as publicizing the location or movement of troops, but several justices observed that the government was not precluded from prosecuting journalists following publication.
Individuals might be prosecuted for publishing materials that were obscene or libelous or for procuring such materials illegally. The prosecution of Daniel Ellsberg, who had leaked the Pentagon Papers, was eventually thwarted when it was discovered that the government had sullied its own hands by illegally breaking into his psychiatrist’s office. The failure of the Ellsberg case does not preclude the possibility that once journalists publish, they might still be prosecuted for violating court orders, illegally obtaining materials or for violating the Espionage Act. Journalists in the early 21st century may yet face such an outcome.
Of all of these decisions, the most critical to daily news reporting in America was the New York Times v. Sullivan case. Libel lawsuits have the potential to decimate news organizations, particularly if a state law sets a very low threshold for actionable harm. The decision established a higher bar for prevailing against journalists who have made errors but who acted in good faith. In cases involving public officials, a court will examine whether a journalist knew the reporting was false or showed a reckless disregard of the facts.
The importance of the New York Times v. Sullivan decision can’t be overstated. It gives journalists some breathing room to aggressively cover public officials who otherwise might sue them into bankruptcy or silence.
In recent years, many politicians and public officials have suggested that New York Times v. Sullivan should be overturned, finding sympathy from at least two Supreme Court justices. Both Justice Clarence Thomas and Justice Neil Gorsuch noted in 2019 that the decision should be reconsidered.
“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable,” Gorsuch wrote.
How value of a free press evolved
In a letter to Edward Carrington in 1787, Thomas Jefferson argued that “the good sense of the American people is always going to be the greatest asset of the American government. Sometimes they might go astray, but they have the ability to right themselves. The people should always have the media to express opinions through.”
Jefferson’s letter then continued:
“The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
The idea of a free press predates the founding of United States. Many scholars trace the first expressions of the concept of a free press in the English-speaking world to John Milton’s Aeropagitica, a speech he wrote in 1644 to persuade the English Parliament to repeal a licensing act enacted a year earlier. Milton argued that the benefits of a vigorous public debate far outweigh the dangers to society of unregulated public discourse — a theory that still has currency today. In the American rationale for a free press, Milton’s concept was characterized by others, such as U.S. Supreme Court Justice Oliver Wendell Holmes Jr., as the “marketplace of ideas,” a sphere in which the truth would naturally assert itself over untruth if left uncensored or otherwise limited by authority.
In early America, most newspapers were highly partisan
Over time the nature of the press changed. In the early American Republic, most newspapers were highly partisan mouthpieces. The founders provided constitutional protection in the Bill of Rights for the “new media” of their day — newspapers — even as many of the publications roasted these political figures in terms that would make today’s supermarket tabloid reports seem tame. In time, these partisan rags were overtaken by mass circulation magazines and metropolitan newspapers as press owners became more competitive and sought to build a mass audience for their publications. These formats were later joined by the broadcast media — radio and television — and still later by internet and digital media.
From thin “journals of opinion” to a mass circulation “penny press” to thousands of local dailies and weeklies and to national newspapers and companion websites, newspapers have been relied upon by Americans to learn the weather forecast, document the workings of public officials, help roust scoundrels, hold the powerful accountable and — for individuals as well as the nation — celebrate triumphs and record moments of tragedy.
Critics and supporters alike are fond of saying that newspapers are just the “first draft of history.” But for most citizens, that draft covers the most important moments of personal histories: birth announcements, stories about a youth’s sport or academic success, graduation lists, marriage announcements — sometimes followed by divorce legal notices — and obituaries — the real stuff of real lives.
Challenges to freedom of the press
An initial step in determining the vital role of a free press in society came in 1735 when a printer, John Peter Zenger, went on trial for seditious libel. He had published a newspaper, the New York Weekly Journal, with articles critical of the government and specifically of William Cosby, the colonial governor of New York. Printers in the New World had for a number of years been battling British colonial officials, contending that the king’s power to license — and thereby control — newspapers no longer applied.
Zenger was brought to trial. He was defended successfully when his lawyer, Andrew Hamilton, convinced the jury that Zenger ought not to be punished for printing what was true even though truth was not then a defense to libel claims.
The role and right of a free press have been tested many times. Even as the founders created the free press provision of the First Amendment, some continued to believe that government needed to control (or exert influence over) some publications. Government acts, powerful officials and even rioting mobs would at times attempt to limit or tax newspapers and intimidate editors and reporters.
In 1798 a Federalist Party-dominated Congress passed the Alien and Sedition Acts. The laws empowered John Adams’ Federalist administration to act against noncitizens it deemed dangerous and provided for criminal charges against Americans who “print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States.”
Some journalists, especially those who supported the Jeffersonian Democratic-Republican Party, were jailed under the Sedition Act. Jefferson’s campaign of 1800 was based in part on a defense of a free press and against the acts, which Congress later allowed to expire. When Jefferson took office, he pardoned individuals who had been imprisoned under the law.
Press offers independent reporting during wars, conflicts
Within a few decades of Jefferson’s victory, the idea of a “mass press” began to take hold, prompted by the growth of cities, changes in printing technology, and the growth of literacy and the popular franchise. Government officials, however, often believed it necessary to censor the press during times of crisis.
During the Civil War, newspapers across the nation were providing news of government policy and reporting from the battlefield — sometimes to the consternation of President Abraham Lincoln, who moved to censor news reports carried by telegraph.
As Lincoln (and subsequent wartime presidents) found, newspaper readers wanted all the news from the front — good and bad. Sometimes “just the news” was not enough. Editor William Story — famed for coining the slogan, “A newspaper’s duty is to print the news and raise hell”—cabled his Civil War correspondents: “Telegraph fully all the news — and when there is no news send rumors.” In the late 19th century, William Randolph Hearst’s newspapers played a part in propelling the nation into the Spanish-American War.
But wartime also has afforded the press a more positive role: keeping the nation informed in time of conflict independent of the government. Wartime has brought forth some of newspapers’ most compelling writing, from early correspondents at the front lines to WWII correspondents like Ernie Pyle to reports from “embedded” journalists accompanying U.S. military forces in Iraq.
The free press reported about conflict even before the Revolution. In addition to written reports, woodcut images of Redcoats firing on civilians in Boston were circulated throughout the colonies. These news reports helped solidify sentiment in still-divided American opinion about breaking with Great Britain.
Most Americans have heard of the battle in which Gen. George Custer and his troops were killed at Little Big Horn. But not many may know that — as documented in the Newseum’s book Crusaders, Scoundrels, Journalists — reporter Mark Kellogg of the Bismark (N.D.) Tribune was killed in 1876 along with General Custer and 210 troopers of the 7th U.S. Cavalry. Kellogg had responded to an Associated Press request for a volunteer news reporter to go along with Custer.
Court has given press a ‘bundle of rights’
Much of the First Amendment’s protection of a free press was established in law during the 20th century by a series of U.S. Supreme Court decisions. In an overview of the free press clause that he published for the First Amendment Center, media law attorney Lee Levine noted the development of a “bundle of rights” for the press that developed through these decisions. These rights established that “the government may not prevent the publication of a newspaper, even when there is reason to believe that it is about to reveal information that will endanger our national security.”
Levine observed that precedents have also established that government may not:
- “Pass a law that requires newspapers to publish information against their will.
- “Impose criminal penalties, or civil damages, on the publication of truthful information about a matter of public concern or even the dissemination of false and damaging information about a public person except in rare instances.
- “Impose taxes on the press that it does not levy on other businesses.
- “Compel journalists to reveal, in most circumstances, the identities of their sources (or)
- “Prohibit the press from attending judicial proceedings and thereafter informing the public about them.”
First Amendment Center scholar Ronald K. L. Collins has written: “A free press is one of the bulwarks of a free society. Without it, there can be no consent of the governed, no informed decision making and no check on the abuses of power. One of the vital roles of the press is to encourage citizens to participate in government by keeping them fully informed about life, law, politics, economics and other things that matter.”
Collins relates the words that Justice Potter Stewart wrote in 1972: “Enlightened choice by informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society.”
Freedom of the press in the future faces challenges
With greater opportunity for a free press in an age of internet communication, social media, the blogosphere and desktop publishing, and with more voices speaking freely across more media than at any other time in U.S. history, Americans are being challenged with new questions on the state of free press.
Citizens are being asked to balance the value of the freedom of a largely unrestrained press against potential national security concerns, of the need for an informed public against growing worries over personal privacy, of the value of the press as government watchdog against fears about public safety and challenges to personal values by freely available online content and commentary.
How Americans respond to those questions and those fears will determine the definition of a free press in the 21st century and whether the “marketplace of ideas” continues to function as independently as it has throughout most of American history.
By Gene Policinski, a senior fellow for the First Amendment at the Freedom Forum. Revised and updated by Ken Paulson, director of the The Free Speech Center at Middle Tennessee State University, in 2023