Key Documents: Section I. Journalism, Media, and the Law - Constitutional Amendments

Introduction

The Bill of Rights, the first ten amendments to the Constitution of the United States, established a collection of basic human prerogatives on a federal level that mirrored many of the rights already guaranteed by individual states. The First Amendment—designed to protect freedom of speech and of the press, along with freedom of religion and the right to peaceable assembly—became the basis for many of the laws that govern the practice of journalism in the United States. The Fourth and Sixth Amendments, to a lesser degree, also influenced the legal guidelines for journalists.

The meaning of the First Amendment for journalists is largely based on the way the Supreme Court and more minor courts interpret the original intent of the framers of the Bill of Rights. Various justices over the years have embraced a number of different theories on just how freedom of speech and of the press should be defined. These theories have run the gamut from zero tolerance for government censorship of free speech or the press to claims that the language of the Constitution is fluid and leaves all protections under the First Amendment open to continual reinterpretation.

The question of what constitutes seditious behavior on the part of the press became one of the earliest and most consistently important challenges to the First Amendment. Over the years, especially in time of war or national emergency, people in power often equate criticism of the government and its elected officials with disloyalty. Prior restraint, another key First Amendment issue, deals with censorship of the press and what it can cover before publication. Most legal experts agree that the First Amendment was meant as a protection against the government predetermining what the public should be allowed to know or discuss. First Amendment issues like “hate speech”—the use of abusive or derisive language to describe people in terms of race, religion, or gender—deal more with the attempt to set tolerable limits for the press rather than absolutes.

The Sixth Amendment demands that a man accused of a crime be “confronted with witnesses against him” and that he needs to “have compulsory process for obtaining witnesses in his favor.” This gives the Sixth Amendment a direct impact on the journalist's ability to protect “anonymous sources” and to honor “confidentiality agreements” in criminal cases. The Sixth Amendment also provides for a “public trial” and strives to guarantee a fair trial with an “impartial jury.” This can put the Sixth Amendment in direct conflict with the First Amendment when judges worry that press coverage of witnesses or criminal suspects might prejudice the public and, in turn, the jury.

The Fourth Amendment protects the right of people to be “secure in their persons, houses, papers and effects” in respect to “unreasonable searches or seizures” and stipulates that no warrants be issued without “probable cause.” There is an argument that the Fourth Amendment can be used to protect the press from unwarranted searches of newsrooms or workplaces where nobody accused of a crime—or involved in a crime—works. This means the Fourth Amendment can be used to argue against the seizure of reporter's notes, photographs, or other relevant news gathering material without “probable cause.”

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