Simone Lawson
The First Amendment to the United States Constitution, ratified on December 15, 1791, is most directly applicable to the media. The Amendment is recognized for protecting freedom of speech, religion, the press, and the right to assemble and petition the government. The text of the Amendment states that Congress shall make no law...abridging the freedom of speech, or of the press.... While the First Amendment protects these rights, they are not absolute and must be balanced against legitimate government interests, such as safety and order. The Supreme Court has ruled on several occasions that generally applicable laws do not violate the First Amendment, even if they incidentally impact the media's free speech rights. However, laws specifically targeting the press or treating different media outlets differently may violate the First Amendment. The First Amendment has been extended to various forms of media, including newspapers, books, movies, and more recently, the internet.
| Characteristics | Values |
|---|---|
| Amendment number | First Amendment |
| Amendment type | One of the ten amendments that constitute the Bill of Rights |
| What it protects | Freedom of speech, freedom of the press, freedom of religion, the right to peaceably assemble, and the right to petition the government for a redress of grievances |
| Who it applies to | Everyone residing in the United States |
| Who it protects against | Government restrictions on speech |
| Who it doesn't protect against | Restrictions on speech imposed by private individuals or businesses |
| What it allows | Individuals to speak, publish, read and view what they wish, worship or not worship as they wish, associate with whomever they choose, and gather together to ask the government to make changes in the law or to correct wrongs in society |
| What it prevents | Congress from making any law that infringes on the above freedoms |
| What it doesn't prevent | Generally applicable laws from being enforced against the press, even if they incidentally impact the media's free speech rights |
| What it requires | Sensitivity to the role of the press and its special needs in performing that role effectively |
| What it doesn't require | That media outlets be treated differently from other businesses in terms of First Amendment protections |
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What You'll Learn
Freedom of speech and the press
The First Amendment to the United States Constitution guarantees the freedom of speech and the freedom of the press. It states that "Congress shall make no law...abridging the freedom of speech, or of the press...". This amendment is a cornerstone of American democracy, safeguarding civil liberties and limiting governmental power.
The freedom of speech and the press are not absolute, however. While the government may not generally jail, fine, or impose civil liability based on speech, legitimate government interests like safety and order may justify restrictions on these freedoms. The Supreme Court has developed legal standards to determine the constitutionality of such restrictions, weighing government interests against the First Amendment rights at stake.
The interpretation of "speech" and "press" has evolved over time. Initially encompassing talking, writing, and printing, it now includes broadcasting, the internet, and other forms of expression. The Supreme Court has also extended First Amendment protections to the internet, ruling that the government cannot regulate speech under the guise of regulating a profession. Symbolic expression, such as flag burning or wearing armbands, is also protected.
The First Amendment's protections extend to media outlets, including newspapers, books, plays, movies, and video games. The Supreme Court has consistently refused to grant greater First Amendment protection to institutional media than to other speakers. However, the press's unique role in disseminating news and information has been acknowledged, and courts have ruled that laws specifically targeting the press may violate the First Amendment.
The freedom of speech and the press are not without limits. The Supreme Court has clarified that these rights do not permit inciting imminent lawless action. Additionally, the Court has taken a narrow view of "low-value" speech, such as defamation, obscenity, and threats, suggesting that such categories have a long history of government regulation.
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Media shield laws
The First Amendment to the United States Constitution guarantees the constitutional rights to free speech and a free press. However, these rights are not absolute and must be balanced against legitimate government interests, such as maintaining safety and order. The Supreme Court has developed legal standards and frameworks to determine whether government restrictions on these rights are constitutional.
While the First Amendment protects the professional activities of journalists, it does not grant them immunity from subpoenas or the forced disclosure of confidential information and sources. This is where media shield laws come into play. Shield laws are designed to protect reporters' privilege and prevent their prosecution, particularly on controversial issues like abortion. These laws vary from state to state, with most states enacting some form of shield law or offering other protections for reporters.
A shield law is a piece of legislation that gives reporters protection against being compelled to disclose confidential information or sources in a state court. It ensures that journalists cannot be forced to reveal their sources or surrender unpublished material obtained during the news-gathering process. The justifications for shield laws include the argument that individuals will be more likely to provide sensitive information if their anonymity is guaranteed, and that shield laws help journalists maintain their ethical standards.
The scope of protection offered by shield laws can vary depending on the type of case, such as civil, criminal, or national security. Some states have shield laws that apply to both civil and criminal cases, while others apply only to civil cases. Additionally, the laws may specify the types of media outlets and journalists that are covered, sometimes excluding bloggers and student journalists.
Despite periodic attempts to pass a federal shield law, none have been successful due to concerns about leaks of classified information and the potential for non-traditional recipients, such as WikiLeaks, to claim protection under an unqualified shield law. The courts are also struggling to define the standards for when shield laws should apply to non-traditional media outlets, particularly in the context of blogs and internet publishing.
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Government restrictions
The First Amendment of the U.S. Constitution is the most directly applicable to the media. It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The First Amendment's right to freedom of speech and a free press are not absolute, and government restrictions on these rights are permitted in certain circumstances. The Supreme Court has developed legal standards and frameworks for determining whether government restrictions that burden First Amendment rights are constitutional. These standards typically refer to government interests as state interests, and the Court weighs the government interests served by the restriction against the First Amendment rights burdened by it.
For example, in Cohen v. California (1971), the Court reversed the conviction of a man wearing a jacket with an expletive-laden political message, ruling that this fell under protected political speech. In another case, Cohen v. Cowles Media Co. (1991), the Court affirmed that media outlets must comply with generally applicable laws, even if they incidentally impact the media's free speech rights.
The Court has also ruled that generally applicable laws do not violate the First Amendment simply because their enforcement against the press has incidental effects. However, laws that target the press or treat different media outlets differently may violate the First Amendment. For instance, in Grosjean v. Am. Press Co. (1936), the Court held that a tax exclusively focused on newspapers violated freedom of the press.
In addition, the First Amendment does not grant media outlets special immunity from general laws. In Associated Press v. NLRB (1937), the Court held that applying the National Labor Relations Act to a news media organisation did not pose First Amendment issues, as it did not interfere with the impartial dissemination of information.
The First Amendment's protection of free speech and a free press also extends to the internet and new media. In Taucher v. Born (1999), the United States District Court for the District of Columbia ruled that the Commodity Futures Trading Commission could not force internet publishers and software developers to obtain licenses before publishing, as this constituted an attempt to regulate speech rather than a profession.
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First Amendment protections
The First Amendment to the United States Constitution is most directly applicable to the media. It reflects the democratic ideals of the Bill of Rights, which consists of the first ten amendments to the Constitution, created to safeguard civil liberties and constrain governmental power.
The First Amendment states: "Congress shall make no law...abridging the freedom of speech, or of the press...". This prohibition on Congress extends beyond Congress through the Fourteenth Amendment and the doctrine of incorporation. The First Amendment protects these rights from government interference of any kind and at any level.
The right to a free press is based on the idea that the government should not restrict or control which messaging or information enters the marketplace of ideas. It protects the public's right to receive information, particularly about government affairs and other matters of public concern. The Supreme Court has determined that speech protected by the First Amendment includes the written word and other forms of expressive conduct, such as messaging on a t-shirt or distributing leaflets.
The First Amendment does not grant the media absolute freedom, however. The Supreme Court has developed legal standards and frameworks for determining whether government restrictions that burden First Amendment rights are constitutional. They generally weigh the government interests served by the restriction against the First Amendment rights burdened by it. Content-based restrictions are typically subject to a strict scrutiny standard of review. While generally applicable laws do not offend the First Amendment, laws targeting the press or treating different media outlets differently may violate the First Amendment.
The First Amendment has been extended to media including newspapers, books, plays, movies, and video games. It is unclear whether those who blog or use social media are journalists entitled to protection by media shield laws, but they are protected equally by the Free Speech Clause and the Free Press Clause, as these clauses do not distinguish between media businesses and nonprofessional speakers.
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Supreme Court rulings
The First Amendment to the United States Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791, is most directly applicable to the media. It is one of the ten amendments that constitute the Bill of Rights, which was created to safeguard civil liberties and limit governmental power. The First Amendment guarantees freedom of speech and a free press, preventing the government from abridging these freedoms.
The Supreme Court has played a crucial role in interpreting and applying the First Amendment to the media. Here are some notable Supreme Court rulings related to media and the First Amendment:
New York Times Co. v. Sullivan (1964): The Court ruled in favour of the media, expanding their protection under the First Amendment. The case involved a civil rights fundraising ad published with some inaccuracies that criticised the Alabama police department. The Court determined that the constitutional rights to free speech and a free press extend to the publication of false or libelous statements about public officials, as open discourse about the government and public affairs is critical.
Cohen v. California (1971): The Court reversed the conviction of an individual wearing a jacket with an expletive-laden political message in a courthouse. Justice John Marshall Harlan II's majority opinion emphasised that the jacket fell under protected political speech, even with the use of vulgar language.
Grosjean v. Am. Press Co. (1936): The Court held that a tax exclusively targeting newspapers violated the freedom of the press guaranteed by the First Amendment.
Schenck v. United States (1919): The Supreme Court upheld the Espionage Act of 1917 and the Sedition Act of 1918, which imposed restrictions on the press during wartime, setting a "clear and present danger" standard for free speech and press rights.
Branzburg v. Hayes (1972): The Court recognised freedom of the press as "a fundamental personal right", not limited to traditional media formats. This case involved a grand jury testimony by a newspaper reporter.
Associated Press v. NLRB (1937): The Court held that the application of the National Labor Relations Act to a news media organisation did not violate the First Amendment. It reasoned that newsgathering organisations are subject to general laws and do not have immunity from infringing on the rights of others.
Cohen v. Cowles Media Co. (1991): The Court affirmed that media outlets must comply with generally applicable laws, even if they incidentally impact the media's free speech rights.
These Supreme Court rulings have significantly shaped the understanding and application of the First Amendment with respect to the media, balancing free speech and press rights with legitimate government interests.
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Frequently asked questions
The First Amendment to the Constitution, ratified on December 15, 1791, is most directly applicable to the media. It is commonly recognized for protecting freedom of speech, religion, the press, and making complaints and requests to the government.
The official text of the First Amendment is:
> "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The First Amendment protects the media by prohibiting Congress from passing laws that infringe upon freedoms of speech and the press. The Fourteenth Amendment further extends this prohibition beyond Congress. The First Amendment also protects the media from government suppression of ideas.
The Constitutional rights to free speech and a free press are not absolute. The government can restrict these freedoms to maintain safety and order. Generally applicable laws that incidentally impact the media's free speech rights can be enforced without offending the First Amendment.
