Freedom of the Press
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Freedom of the Press
This document tells you the following:
- What is freedom of the press?
- What does the right to access mean?
- Do reporters always have to reveal their sources to the government?
- What is a "gag order"? Can judges require the press to stop publicizing a case before it goes underway?
- How does prior restraint affect school newspapers?
The authors of the U.S. Constitution wanted a strong and independent press to ensure that the public would always be informed about what was happening in government and society. A free press enables people to make informed decisions on issues and candidates for office.
Not all countries guarantee the right to freedom of the press. In many countries, the news-papers and radio and television stations are owned and run by the government. What problems, if any, could arise in that situation? What might be the benefits of that system?
In the United States, anyone with the means and desire can publish a magazine or newsletter. Radio and television stations may be regulated, however, because there are a limited number of frequencies (or channels) on a radio or television set.
Nevertheless, this control cannot be used to suppress information.
To have freedom, the press must have access to information and be able to present the information it obtains. As you will see, sometimes these rights conflict with others.
The Right to Access
Members of the press feel that they have a right to know about government activities. However, governments may want to deny the press access to some information. When this kind of conflict occurs, courts have to decide between the public's right to know and the government's reason for withholding information. Consider the following situations.
SITUATION 12 The planning commission of Shadyside, Georgia, wants to bar the press from its monthly meeting. The commission expects to vote on the location of an airport. Town citizens have strong, varying opinions about the matter. Commissioners want to play down the conflict.
SITUATION 13 The city council of Shadyside wants to review the personnel record of the police chief and possibly discipline him. The council denies the press access to the meeting.
SITUATION 14 The national government bars reporters from observing military maneuvers in the South Pacific.
"Sunshine laws" in Georgia (and other states) require governments to hold open meetings when official actions are taken. For this reason, the press could not be denied access in situation 12.
There are exceptions. One is when disciplinary actions might be taken against public employees (situation 13). In that case, the individual's right to pri-vacy is seen as more important than the public's right to know.
At times, the federal government has denied the press access to information in the interest of national security (situation 14).
Clearly, to preserve democracy, it is important to guard against too many government actions that take place in secret. Generally, however, the courts have supported the government's position on this issue.
Another conflict occurs when the government asks reporters to reveal their sources. Sometimes, reporters are given important information by people who want to remain anonymous. These people might stop providing information if their names were made public.
This conflict usually occurs in relation to criminal trials. The Sixth Amendment of the U.S. Constitution guarantees a defendant the right to confront witnesses who give evidence against him or her. Defense lawyers may therefore insist on learning the names of sources, or pros-ecuting attorneys may want the names of sources to build a stronger case.
Do reporters have to reveal their sources? Traditionally, courts have held that the need for a fair trial outweighs the right to a free press in this situation. However, the courts have only in-sisted on learning the names of sources that are essential to a case. Georgia and most states now have "shield laws." These laws allow reporters to protect their sources in certain situations.
Even if a shield law exists, though, courts can require the disclosure of a source if it is essential to the case and cannot be obtained another way. Often, when a court insists on the dis-closure of a reporter's source, the name will be revealed in the judge's chamber. In this way, the source is given as much privacy as possible.
Prior Restraint to a Free Press
SITUATION 15 Sonja is accused of murdering her nephew and niece. The bodies were disposed of in a particularly gruesome way. Day by day, the press reports on police investi-gations. They print details about Sonja's personal affairs. The police are convinced Sonja is guilty.
Will the press coverage prevent her from getting a fair trial?
The situation is not unusual. Defense attorneys frequently ask whether a trial can be fair when it receives a lot of publicity. The question is, does a great deal of publicity cause potential jurors to form opinions about the guilt or innocence of the defendant before a trial? The courts have decided that such publicity may prevent a fair trial. In response, the courts have issued "gag orders" to prohibit press coverage before and during trials. The problem is that gag orders amount to prior restraint of the press, which is forbidden by the Constitution as censorship before publication. Consequently, gag orders can be used only under certain circumstances.
Courts have other alternatives. For example, they can move trials to other areas. They can delay trials. They can take care in instructing jurors. They can ask jurors what they have seen in newspapers and on television about the case. They can further ask if exposure to that information has affected jurors' views.
Prior Restraint and School Newspapers
SITUATION 16 A journalism class at Hazelwood East High School in St. Louis produced a newspaper. It was paid for partly by sales and partly by the Board of Education. As was customary, the journalism teacher submitted an issue to the principal to review. The principal objected to two articles. One article was about the pregnancies of three unidentified students. The other dealt with the impact of a divorce on an identified student. The principal took out the stories. Can the principal take such action?
In this real-life case, three student staff members sued on the basis of censorship or prior restraint. The newspaper even had a school-approved policy that upheld First Amendment rights. This case went to the U.S. Supreme Court. The school had argued that publication of the articles would imply school endorsement. Because the paper was produced in a class and mostly financed by the school system, the court's majority agreed with the school on this point. In addition, it felt that schools have the right to regulate class activities in a reasonable manner. In effect, the court provided a right for schools to exercise editorial control over student publications in such situations. However, the court said any censorship must have a valid educational purpose, and it cannot be directed at silencing a particular viewpoint. Hazelwood School District v. Kuhlmeier, 108 S.Ct. 562 (1988).
* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.