Freedom of Press

                The topic of discussion for this Constitution Monday comes from the First Amendment to the Constitution of the United States:  “Congress shall make no law … abridging the freedom … of the press….”  This clause guarantees the right of Americans to have a free press.

                “Freedom of the press has been a difficult right to protect and preserve.

                “Almost from the moment that the art of printing began to be a significant cultural influence, efforts were exerted to gain control of its use by the king or the central government.  For example, Henry VIII (1509-1547) took absolute control of the press, both as to who could print and what could be printed.  When Cromwell ruled during the period of the Lone Parliament, the same control continued.  By 1758, however, freedom of the press had been established to the point where Blackstone could say, `Every freeman has an undoubted right to say what sentiments he pleases before the public….  But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.’”  (See W. Cleon Skousen in The Making of America – The Substance and Meaning of the Constitution, pp. 688-689.)

                According to Eugene Volokh at The Heritage Foundation, “there is little definitively known about “ what “the Framers meant by `freedom of speech, or of the press’?”  He stated that “today’s free speech and free press law is not much influenced by original meaning” but “is mostly the creature of the experience and thinking of the twentieth century.”  He listed nine rules about freedom of speech/press, which apply to most of the Bill of Rights. 

                1. The “free speech/press guarantee restricts only government action, not action by private employers, property owners, householders, churches, universities, and the like.”

                2. The “free speech/press guarantee applies equally to federal and state governments, which includes local governments as well as all branches of each government….”

                3. “The free speech and the free press clauses have been read as providing essentially equal protection to speakers and writers, whether or not they are members of the institutional press, and largely regardless of the medium – books, newspapers, movies, the Internet – in which they communicate.  Newspapers enjoy no more and no fewer constitutional rights than individuals.  The one exception is over-the-airwaves radio and television broadcasting, which has for historical reasons been given less constitutional protection….”

                4. “The free speech/press guarantee also extends to any conduct that is conventionally understood as expressive – for instance, waving a flag, wearing an armband, or burning a flag…”

                5. “The free speech/press guarantee extends not just to political speech but also to speech about religion, science, morality, social conditions, and daily life, as well as to art and entertainment….”

                6. “The free speech/press guarantee extends to all viewpoints, good or evil.  There is no exception, for instance, for Communism, Nazism, Islamic radicalism, sexist speech, or `hate speech,’ whatever that rather vague term may mean….”

                7.  “There is, however, a small set of rather narrow exceptions to free speech protection:  a) Incitement…, b) False statements of fact…, c) Obscenity…, d) Child pornography…, e) Threats…, f) Fighting words…, g) Speech owned by others…, h) Commercial advertising….”

                8. “All of the preceding rules apply to restrictions that relate to what the speech communicates – to the tendency of the speech to persuade people, offend them, or make them feel unsafe.  Content-neutral restrictions that relate to the noncommunicative impact of speech – for instance, noise, obstruction of traffic, and so on – are easier to justify.  The test for content-neutral restrictions is complicated, but the key point is that the government may generally impose content-neutral `time, place, and manner restrictions’ so long as those restrictions leave open ample alternative channels for communication….”

                9. “Finally, all of the preceding rules apply to restrictions that are imposed by the government acting as sovereign and backed by the threat of jail terms, fines, or civil liability.  They also apply to the government controlling what is said in `traditional public fora,’ such as parks, streets, sidewalks, or the post office.  But when the government is acting as, for instance, (a) employer, (b) K-12 educator, (c) proprietor of government property other than traditional public fora, (d) subsidizer, (3) speaker, or (f) regulator of the airwaves, it has broader (though not unlimited authority….”

                “Free speech/press law is sometimes called the tax code of constitutional law.  The discussion above suggests how complex the law is, but while some of the complexity may be needless, much of it is inevitable.  Communication is in many ways the most complicated of human activities, and no simple rule can properly deal with all the different kinds of harms that it can cause – or all the different kinds of harms that restricting communication can cause.”  (See The Heritage Guide to the Constitution, pp. 311-315.)