Street Law: A Course in Practical Law

Chapter 38: Freedom of the Press

Chapter Overviews

The First Amendment protects media publications such as radio, television, newspapers, and books from government censorship. Therefore, the government does not have the right to limit the publication, production, or use of any media simply because it finds it offensive. Freedom of the press raises many controversial and competing claims concerning where, when, how, and by whom this freedom is used in everyday life.

Prohibiting Publication  Prior restraint is a term used to describe the censorship of a publication or production before its actual release. The courts generally find this kind of censorship unconstitutional. One exception would be when the publication or production would cause serious and irreversible harm, such as publishing confidential military plans. Any restriction on media content must be reasonable and intended to prevent immediate harm in order to be constitutional.

Denying the Press Access to Information  Many people believe that freedom of press includes the right to access information as well as the right to distribute it. The Freedom of Information Act(FOIA) grants the public access to certain government information and records. Government information and records are available to the public upon request as long as the records are not strictly confidential documents. Some states also have laws similar to the FOIA that provide citizens access to state agency files. Generally, the press has no greater freedom to access information than the public. Sometimes, in the interest of justice, a judge will impose a gag order that prevents the attorneys in a trial from discussing the case. Representatives of the media may challenge a gag order in court. The judge will have to balance the interest in a fair trial against the right of the public and the press to information.

Requiring the Press to Disclose Information  Reporters are often given confidential information for a news story. Sometimes, the sources of confidential information are needed for important purposes such as a court case. Journalists may be reluctant or unwilling to reveal confidential sources because they believe it betrays the source's trust or will make people unwilling to give information to the press in the future. Laws known as "shield" laws can protect a journalist from being required to reveal the source of confidential information.