Over the past century, American courts’ view of the First Amendment has changed considerably. Below are 10 Supreme Court cases that have had profound impact on journalism and the law.
The first “free press” case to come before the Supreme Court. In it, the Court decided it did not have jurisdiction to assess the contempt conviction of Senator and newspaper publisher Thomas Patterson. In his paper, the Rocky Mountain News, Patterson published articles and a cartoon critical of the Colorado Supreme Court. Justice Holmes wrote that “what constitutes contempt, as well as the time during which it may be committed, is a matter of local law. The Court also held the position that the First Amendment was concerned with "preventing prior restraints, not subsequent punishment for speech.”
Socialist Charles Schenck was arrested for distributing anti-war documents to draftees, urging them not to “submit to intimidation” by the “capitalists.” Schenck was charged with violating the Espionage Act for obstructing the military and engaging in insubordination. Schenck argued he was protected by the First Amendment's right to free speech. In a unanimous ruling, the Supreme Court rejected his argument. Justice Holmes wrote: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Five people were convicted under the Espionage Act of impeding the war effort for publishing and distributing leaflets denouncing the military's decision to send American troops to Russia. The Supreme Court upheld the lower court's decision, yet it was the dissenting opinion of Justice Holmes that would have a long-lasting impact for his “marketplace of ideas” interpretation of the First Amendment: “The ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
The Court struck down a permanent injunction against Jay Near and his Saturday Press penny press. Minnesota officials forced Near to stop publishing after he printed incriminating information connecting local officials to gangsters. The state injunction was on the grounds that Near was guilty of nuisance for publishing “malicious, scandalous and defamatory” articles and therefore claimed he could not publish additional material. The Supreme Court ruled Minnesota's “gag law” unconstitutional, as it constituted “prior restraint” and was therefore in violation of the First Amendment. The case established the principle that the government cannot prohibit publication in advance, even though the material may be considered actionable after it is published.
A benchmark ruling by the Court, the case established the “actual malice” standard. The New York Times printed a full-page ad paid for by supporters of Dr. Martin Luther King, Jr., against perjury charges. The ad detailed happenings between police officers and civil rights protesters, and contained inaccuracies. Alabama Public Safety Commissioner L.B. Sullivan, although not mentioned in the ad, nevertheless sued the New York Times for defamation and was awarded damages by an Alabama Court. The Supreme Court struck down the lower court's decision, ruling that the New York Times did not knowingly print false information. Further, the burden of proof was set higher for public officials to prove defamation. The “actual malice” test declared that a newspaper must “knowingly published a false statement” or publish “with reckless disregard whether false or not.”
The Court recognized the need to weigh the rights of a free press against the needs of national security. The New York Times had begun to print classified information about a Department of Defense Study—what became known as the Pentagon Papers—about the United States' buildup to war in Vietnam. The Nixon Administration argued that prior restraint was necessary under the principle of protecting the nation while at war. The Supreme Court ruled in favor of the New York Times.The court reasoned that because the publication of the material would not cause direct harm to, or threaten the safety of U.S. Forces, there were no grounds for prior restraint.
The case established that reporters are not exempt from testifying before state or federal grand juries. Paul Branzburg, a reporter for the Courier Journal in Louisville, Kentucky twice refused to testify before grand juries concerning illegal drug use in the state, as it meant revealing confidential sources. The Court upheld the decision of the Kentucky Supreme Court—that reporters have no privilege above ordinary citizens when it comes to revealing information in a court of law, regardless if the information was received in confidence.
In another landmark decision, the Court further distinguished between a private and public person when it came to defamation and the First Amendment. Gertz was an attorney hired by a couple suing a police officer who had killed their son. Gertz claimed he was libeled by American Opinion, a magazine published by the ultra-Conservative John Birch Society. (It accused him of being "Leninist.") Gertz lost his case against the magazine when a judge ruled that the “actual malice” test had not been met. The Supreme Court overruled the lower court's decision. As Gertz was not a public figure (or a public official), the Court stated that the “actual malice” standard set by New York Times v. Sullivan was not applicable. The ruling allowed for a different standard of libel for figures in the public eye than for ordinary citizens, who the court said should be granted greater protection.
In a narrow, 5-4 decision, the Supreme Court ruled that journalists are not exempt from generally applied state laws. Cohen, a Republican campaigner for the 1982 Minnesota gubernatorial candidate, had incriminating information about the Democrat candidate for lieutenant governor. He leaked it to the St. Paul Pioneer Press and the Minneapolis Star Tribune on the condition of anonymity. Reporters from the two papers agreed, yet both published his name and Cohen was fired as a result. He sued for breach of contract and won. The Minnesota Supreme Court reversed the decision on the grounds that the First Amendment superseded Minnesota’s “promissory estoppel” law, which, in essence, binds a person to his/her pledge. The United States Supreme Court disagreed, ruling that the First Amendment did not excuse reporters from keeping their promises.
The Court ruled the First Amendment protects speech that discloses illegally recorded content by a third party. A radio commentator played portions of an illegally-recorded phone call between two teachers union members—a union negotiator and a union president—during collective bargaining talks. The call was recorded by an unknown third party and given to the radio station. In a split decision, the Court ruled in favor of the radio station. “In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance .... [A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”