James C. Goodale served as general counsel to The New York Times when the U.S. Supreme Court decided that the Times could continue to publish the then-classified Pentagon Papers. In the following article, Goodale describes several Supreme Court cases in which First Amendment rights have been upheld, allowing the press to pursue its mission, no matter how odious that mission might seem to those in power. Goodale is an attorney with Debevoise & Plimpton, a New York law firm that specializes in First Amendment and communications law. Craig Bloom, an associate, assisted in the preparation of this article.

The First Amendment to the United States Constitution provides that "Congress shall make no law...abridging the freedom...of the press." Although the First Amendment specifically mentions only the federal Congress, this provision now protects the press from all government, whether local, state or federal.

The founders of the United States enacted the First Amendment to distinguish their new government from that of England, which had long censored the press and prosecuted persons who dared to criticize the British Crown. As Supreme Court Justice Potter Stewart explained in a 1974 speech, the "primary purpose" of the First Amendment was "to create a fourth institution outside the government as an additional check on the three official branches" (the executive branch, the legislature and the judiciary).

Justice Stewart cited several landmark cases in which the Supreme Court -- the final arbiter of the meaning of the First Amendment -- has upheld the right of the press to perform its function as a check on official power. One of these cases -- the 1971 Pentagon Papers case -- lies especially close to my heart.

Back then I was general counsel to The New York Times, which had obtained a leaked copy of the classified Pentagon Papers, a top-secret history of the United States government's decision-making process regarding the war in Vietnam. After a careful review of the documents, we began to publish a series of articles about this often unflattering history, which suggested that the government had misled the American people about the war.

The day after our series began, we received a telegram from the U.S. attorney general warning us that our publication of the information violated the Espionage Law. The attorney general also claimed that further publication would cause "irreparable injury to the defense interests of the United States."

The government then took us to court, and convinced a judge to issue a temporary restraining order which prohibited the Times from continuing to publish the series. Following a whirlwind series of further hearings and appeals, we ended up before the Supreme Court two weeks later. The court ruled that our publication of the Pentagon Papers could continue. The court held that any prior restraint on publication "bear[s] a heavy presumption against its constitutional validity," and held that the government had failed to meet its heavy burden of showing a justification for the restraint in New York Times Co. v. United States, 403 U.S. 713 (1971). We immediately resumed our publication of the series, and we eventually won a Pulitzer Prize, the profession's highest honor, for the public service we performed by publishing our reports.

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Click here for a list of Supreme Court opinions for these and other cases on freedom of the press, or go to the Bibliography.

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Seven years before the Pentagon Papers case, the Supreme Court handed The New York Times another landmark First Amendment victory, this time in the seminal libel case New York Times Co. v. Sullivan, 376 U.S. 254 (1964). This action was brought by an elected official who supervised the Montgomery, Alabama police force during the height of the civil rights movement in the 1960s. The official claimed that he was defamed by a full-page advertisement, published in the Times, that accused the police of mistreating non-violent protestors and harassing one of the leading figures in the civil rights movement, the Rev. Martin Luther King.

The Supreme Court found that even though some of the statements in the advertisement were false, the First Amendment nevertheless protected the Times from the official's suit. The court considered the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." In light of this commitment, the court adopted the rule that a public official may not recover damages for a defamatory falsehood related to his official conduct "unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." The court later extended this rule beyond "public officials" to cover libel suits brought by all "public figures." Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967).

Although the Sullivan case is best known for the "actual malice" rule, the Supreme Court's decision included a second holding of great importance to the press. Noting that the challenged advertisement attacked the police generally, but not the official specifically, the court held that an otherwise impersonal attack on governmental operations could not be considered a libel of the official who was responsible for the operations.

The First Amendment also protects the right to parody public figures, even when such parodies are "outrageous," and even when they cause their targets severe emotional distress. In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the court considered an action for "intentional infliction of emotional distress" brought by Jerry Falwell -- a well-known conservative minister who was an active commentator on political issues -- against Larry Flynt, the publisher of Hustler, a sexually explicit magazine. (This case figures prominently in the critically-acclaimed film "The People vs. Larry Flynt," which opened in the United States in late 1996.)

The Hustler case arose from a parody of a series of Campari liqueur advertisements in which celebrities spoke about their "first times" drinking the liqueur. The Hustler magazine parody, titled "Jerry Falwell talks about his first time," contained an alleged "interview" in which Falwell stated that his "first time" was during a drunken, incestuous encounter with his mother in an outhouse. The parody also suggested that Falwell preached only when he was drunk.

The Supreme Court held that the First Amendment barred Falwell's contention that a publisher should be held liable for an "outrageous" satire about a public figure. The court noted that throughout American history, "graphic depictions and satirical cartoons have played a prominent role in public and political debate."

Although the Supreme Court opined that the Hustler parody at issue bore little relation to traditional political cartoons, it nonetheless found that Falwell's proposed "outrageousness" test offered no principled standard to distinguish between them as a matter of law. The court emphasized the need to provide the press with sufficient "breathing space" to exercise its First Amendment freedom. The court added that "if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas."

The protection of the First Amendment extends beyond press reports concerning major government policies and well-known public figures. The Supreme Court has held that if the press "lawfully obtains truthful information about a matter of public significance then [the government] may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order," Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979).

Applying this principle, the Supreme Court has employed the First Amendment to strike down state laws which threatened to punish the press for reporting the following: information regarding confidential judicial misconduct hearings, Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); the names of rape victims, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); and the names of alleged juvenile offenders, Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979). The court also struck down a law which made it a crime for a newspaper to carry an election day editorial urging voters to support a proposal on the ballot, Mills v. Alabama, 384 U.S. 214 (1966).

The First Amendment also prevents the government from telling the press what it must report. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Supreme Court considered whether a state statute could grant a political candidate a right to equal space to reply to a newspaper's criticism and attacks on his record. The court struck down the law, holding that the First Amendment forbids the compelled publication of material that a newspaper does not want to publish. The court held that the statute would burden the press by diverting its resources away from the publication of material it wished to print, and would impermissibly intrude into the functions of editors.

The Supreme Court has not, however, afforded similar protection to the broadcast media. In a pre-Tornillo case, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Supreme Court upheld a Federal Communications Commission rule that required broadcasters to provide a right of reply under certain circumstances. The court justified this regulation by citing the scarcity of the broadcast spectrum and the government's role in allocating frequencies.

Today, the scarcity problem is much reduced in light of technological advances in the division of the spectrum, and the rise of new media outlets such as cable television and the Internet. Although many issues regarding the reach of the First Amendment to these new media remain unresolved, First Amendment advocates hope to convince the Supreme Court to provide these media with the highest level of First Amendment protection.

Although the First Amendment generally prevents the government from restraining or punishing the press, the First Amendment usually does not require the government to furnish information to the press. However, the federal government and the state governments have passed freedom of information and open meetings laws which provide the press with a statutory right to obtain certain information and to observe many of the operations of government. In addition, the First Amendment does furnish the press with the right to attend most judicial proceedings.

The First Amendment also provides journalists with a limited privilege not to disclose their sources or information to litigants who seek to use that information in court. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that reporters did not have a privilege to refuse to answer a grand jury's questions that directly related to criminal conduct that the journalists observed and wrote about.

However, the court's opinion noted that news gathering does have First Amendment protections, and many lower courts have applied a qualified First Amendment privilege to situations in which the need for the journalist's information was less compelling than in Branzburg. These courts require litigants to prove that the material sought is relevant to their claim, necessary to the maintenance of the claim, and unavailable from other sources. In addition, more than half of the states have adopted statutes called "Shield Laws," which provide a similar privilege to journalists.

Although the press normally must obey generally applicable laws, the First Amendment prevents the government from enforcing laws which discriminate against the press. For example, the court has struck down a law which imposed a special tax on large newspapers, Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,460 U.S. 575 (1983) , and a law which imposed a tax on some magazines but not others based on their subject matter, Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) .

As the cases discussed above illustrate, over the course of the 20th century the Supreme Court has breathed life into the text of the First Amendment by upholding the right of the press to pursue its mission, no matter how odious that mission might seem to those in power. The courts have imposed some limits on this liberty, and questions remain as to how far this liberty will extend to new media, and to some of the more aggressive efforts employed by journalists to obtain the news. Still, I am confident that the Supreme Court will continue to recognize that, as Justice Stewart wrote in the Pentagon Papers case, "without an informed and free press there cannot be an enlightened people."

Issues of Democracy
USIA Electronic Journal, Vol. 2, No. 1, February 1997