The First Amendment to the U.S. Constitution:
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.
Are there limits on the First Amendment? Yes.
1. You cannot create a clear and present danger
In 1919, Justice Oliver Wendell Holmes developed the "clear and present danger test" to determine what kind of speech was not protected by the First Amendment. Falsely shouting fire in a crowded theatre, for example, is not protected speech.
2. You cannot endanger national security or cause a national emergency
The Court has ruled that information on troop movements and other sensitive information in time of war could be restrained if there was a "clear and present danger." In the Pentagon papers case (1971), when Daniel Ellsberg photocopied a secret study on U.S. policy in Vietnam and gave it to the New York Times, the Supreme Court said the government's claim of national security was too weak. So the claim of national security has to be specific.
The Supreme Court ruled in Near v. Minnesota (1927) that the government may not prohibit expression before it is made, except in a case such as a national emergency. You can't stop a paper or a publication from being produced because of what it might say in the next issue. This is called prior restraint.
3.You cannot lie in a way that will harm someone's reputation
The press is not free to say anything about anyone. Falsely accusing someone is libelous. Winning a libel case today is difficult, but it does happen.
Defamation is a statement that harms the reputation of someone else. The important point is *reputation*: for a statement to defame, it must either lower the victim's standing in the eyes of the community, or tend to make others refrain from associating with the victim. Some examples that are NOT libelous:
From: Libel and Defamation: Cyberspace Law for Nonlawyers
New York Times v. Sullivan
This was a key court decision made in 1964 that helped define standards of libel.
Facts of the case are found in the following:
The advertisement / Text / Defamatory content
(Courtesy of Jean Goodwin, Assistant Professor, Northwestern University)
To win a libel case, the Supreme Court ruled that public officials needed to prove that damaging statements were uttered or printed with the knowledge that they were false. The question was whether the Times was guilty of "reckless disregard" of the truth. In later cases, the definition of public official has been expanded to include "public figures."
Defenses for libel:
Another recent, as yet undecided case, is that of Richard Jewell, the man accused of planting a bomb in Centennial Park during the Atlanta Olympics. Article 25 in Annual Editions has a good summary of the case, as do the following Web sites:
4. You cannot unreasonably invade someone's privacy
The Court has recognized a right to be left alone, even though there is nothing in the Constitution which guarantees a "right to privacy." In general, permission is not needed from individuals to report on them in the media, but there are some limits: less freedom in private places (such as in a hospital room) than in public places; and aggressive harassment.
Laws protecting journalists and journalism
1. Shield laws
Judge quashes subpoena for reporter's interview with murder suspect
Nevada's shield law says: "No employee of any ... television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing such information for communication to the public in any ... trial ... before any court."
2. Sunshine laws
These include open meeting laws, open record laws and the Freedom of Information Act.
Regulations governing the content of media