Supreme Court and Journalism

The American constitutional guarantee of a free press works because an independent judiciary headed by the U.S. Supreme Court has enforced the promise for more than 200 years. The courts are the instrument that gives life to the First Amendment's words that “Congress shall make no law… abridging the freedom of speech, or of the press.…” There is almost nothing that American journalists do that has not been affected by rulings of the Supreme Court.

While protecting essential elements of news media freedom, the Supreme Court (and the lower courts which must follow its rulings) has sought to balance the rights of journalists against competing claims to constitutional protection. These include rights to reputation and privacy, fair trial rights, and the needs of government to maintain order and public safety. In determining the rights and duties of the press, the Court usually has given reporters no greater rights than nonjournalists have, the First Amendment's “press clause” notwithstanding.

American federal and state constitutions protect the rights of people to speak and write freely.

The U.S. Constitution, the supreme law of the land (by virtue of Article VI, the Supremacy Clause) seems to protect the news media doubly. To the generalized protection of expression (“free speech” in the First Amendment) a second clause was added guaranteeing freedom of the press. Supreme Court Justice Potter Stewart, in a 1974 speech at Yale, observed that journalism was the only occupation singled out for explicit constitutional protection, “to create a fourth institution outside the Government as an additional check on the three official branches.”

That status was not always honored. Barely ten years after the Constitution was adopted in 1789, two dozen editors were arrested—and eight pun-ished—under the Alien and Sedition Act for criticizing the John Adams administration. Later, during the Civil War (1861–65), publishers perceived as sympathetic to the Confederacy faced imprisonment or the closing of their newspapers. In 1918, the Supreme Court failed to even mention the First Amendment when it upheld the contempt conviction of a Toledo, Ohio, newspaper and its editor for their sharp attacks on a judge's rulings in a streetcar dispute.