Chapter Overview

Historical Development:

Freedom of the press is part of the great Anglo-American legal tradition, but it is a right that has been won only through many hard-fought battles. The British discovered the power of the press in the early 16th century and devised numerous schemes to restrict publication. Criticism of the government, called seditious libel, was outlawed. Licensing or prior censorship was also common. In addition, the Crown for many years used an elaborate system of patents and monopolies to control printing in England.

While under British law for more than 100 years, American colonists enjoyed somewhat more freedom of expression than did their counterparts in England. Censorship laws existed before the first printing press arrived in North America, but they were enforced erratically or not at all. Licensing ended in the United States colonies in the 1720s. There were several trials for sedition in the colonies, but the acquittal of John Peter Zenger in 1735 by a recalcitrant jury ended that threat. Colonial legislatures and assemblies then attempted to punish dissident printers by using their contempt power. By the time the American colonists began to build their own governments in the 1770s and 1780s, they had the history of a 300-year struggle for freedom of expression on which to build.

The First Amendment:

The nation's first constitution, the Articles of Confederation, did not contain a guarantee of freedom of speech and press, but nearly all state constitutions provided for a guarantee of such rights. Citizens insisted that a written declaration of rights be included in the Constitution of 1787, and a guarantee of freedom of expression was a part of the Bill of Rights that was added to the national charter in 1791.

There is a debate within the legal-historical community over the meaning of the First Amendment when it was drafted and approved in the late 18th century. Some persons argue that it was intended to block both prior censorship and prosecution for seditious libel. Others argue that it was intended to prohibit only prior censorship. We will probably never know what the guarantee of freedom of expression meant to the persons who drafted it, but it is a good bet that citizens had a wide variety of interpretations of the First Amendment when they voted to approve it.

The meaning of the First Amendment today is largely determined through interpretation by the Supreme Court of the United States. Jurists use legal theories to guide them in determining the meaning of the Constitutional guarantee that "Congress shall make no law abridging freedom of speech or of the press." Five such theories are (1) absolutist theory, (2) ad hoc balancing theory, (3) preferred position balancing theory, (4) Meiklejohnian theory and (5) access theory. Theories 2, 3 and 4 have the most supporters on the Supreme Court, and all the theories have assisted members of the high court to shape the meaning of the First Amendment.

The Meaning of Freedom:

Within eight years of the passage of the First Amendment, the nation adopted its first (and most wide-ranging) sedition laws, the Alien and Sedition Acts of 1798. Many leading political editors and politicians were prosecuted under the laws, which made it a crime to criticize both the president and the national government. While the Supreme Court never did hear arguments regarding the constitutionality of the laws, several justices of the Supreme Court presided at sedition act trials and refused to sustain a constitutional objection to the laws. The public hated the measures. John Adams was voted out of office in 1800 and was replaced by his political opponent and target of the sedition laws, Thomas Jefferson. The laws left such a bad taste that the federal government did not pass another sedition law until World War I, 117 years later.

Sedition prosecutions in the period from 1915 to 1925 were the most vicious in the nation's history as war protesters, socialists, anarchists and other political dissidents became the target of government repression. It was during this era that the Supreme Court began to interpret the meaning of the First Amendment. In a series of rulings stemming from the World War I cases, the high court fashioned what is known as the clear and present danger test to measure state and federal laws and protests and other expressions against the First Amendment. The test was rigid and was never used to overturn a lower-court conviction, although in 1927 Justice Louis D. Brandeis did fashion a broad and liberal interpretation of the clear and present danger test in his dissent in the case of Whitney v. California. In 1925 the court ruled that the guarantees of freedom of speech apply to actions taken by all governments, that freedom of speech under the First Amendment protects individuals from censorship by all levels of government, not just from actions by the federal government. This pronouncement in Gitlow v. New York opened the door to a much broader protection of freedom of expression in the nation.

The nation's most recent sedition law was adopted in 1940. The Smith Act, as it is known, prohibits the advocacy of the violent overthrow of the government. Following a series of trials and two Supreme Court rulings in the 1950s, the law has become a relatively benign prohibition. The high court ruled in 1957 in Yates v. U.S. that to sustain a conviction under the Smith Act, the government must prove that the defendants advocate specific violent or forcible action toward the overthrow of the government. The government found it impossible to prove this in the 1950s, and the Smith Act has not been invoked to punish an act of expression for more than 40 years. The Supreme Court made its last important attempt to reconcile the First Amendment and the law of sedition in 1969 when it ruled in Brandenburg v. Ohio that advocacy of unlawful conduct is protected by the Constitution unless it is directed toward inciting or producing imminent lawless action and is likely to incite or produce such action.

Taxation and the Press:

Governments have traditionally used taxation as a means of controlling the press. Since the 1930s and the U.S. Supreme Court ruling in Grosjean v. American Press Co., the First Amendment has posed a substantial barrier to such efforts by governments in the United States. Newspapers, broadcasting stations and other mass media must surely pay the same taxes imposed on other businesses. But taxes that are levied only against the press and tend to inhibit circulation or impose other kinds of restraints are unconstitutional. Also, taxes levied against mass media that are based solely on the content of the particular medium are generally regarded as unconstitutional.

Prior Restraint:

While virtually all American legal scholars agree that the adoption of the First Amendment in 1791 was designed to abolish prior restraint in this nation, prior restraint still exists. A reason it still exists is the 1931 Supreme Court ruling in Near v. Minnesota in which Chief Justice Charles Evans Hughes ruled that while prior restraint is unacceptable in most instances, there are times when it must be tolerated if the republic is to survive. Protecting the security of the nation is one of those instances cited by Hughes and in the past quarter century in two important cases, the press has been stopped from publishing material the courts believed to be too sensitive. While the Supreme Court finally permitted The New York Times and the Washington Post to publish the so-called Pentagon Papers, the newspapers were blocked for two weeks from printing this material. And in the end the high court merely ruled that the government had failed to make its case, not that the newspapers had a First Amendment right under any circumstance to publish this history of the Vietnam War. Eight years later the Progressive magazine was enjoined from publishing an article about thermonuclear weapons. Only the publication of the same material by a small newspaper in Wisconsin thwarted the government's efforts to permanently stop publication of this article in the Progressive.