Amendment I of the United States 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.
Ratified December 15, 1791
Freedom of Press is Essential to Democracy
Freedom of Press is essential to self-government in a democracy, as a free press is considered the “fourth branch of government,” which keeps the public informed and provides oversight and a “check” on federal and state/local government power. The press is not an arm of the government, but rather it holds the government to account.
Prior Restraint & Reporter’s Privilege
The First Amendment is a restriction on governmental action, “Congress shall make no law … abridging the freedom of speech, or of the press.” Thus, for First Amendment protections, state action is required, a federal restriction on publication or state restriction on publication (in Near v. Minnesota (1931), the Supreme Court incorporated freedom of press in the First Amendment to apply to the states through the 14th Amendment).
- “Prior restraint” is when the government seeks to prevent publication or distribution of material to the public. This is a form of censorship, which undermines the purpose and value of a free press, to serve as a check on the government and to inform the public. An exception would be if publication would pose an actual security threat or imminent harm
- “Reporter’s privilege” enables the reporter to use a confidential source and to not be compelled to testify or disclose the identity of the source, including to the government. This privilege is often protected by state “shield” laws and federal courts have recognized the privilege, see Branzburg v. Hayes (1972).
New York Times Co. v. Sullivan (1964)
The Supreme Court held that defamation or libel was not protected by the First Amendment, and that when a statement concerns a public official, the official must show that the statement was made with “actual malice.” The Court defined such malice as knowledge that the statement was false or demonstrating a reckless disregard for its falsity. Learn More
New York Times Co. v. United States (1971)
The Supreme Court rejected the Nixon administration’s efforts to prevent publication of the Pentagon Papers. The Court held that the government had not met the “heavy burden of showing justification for the enforcement of such a [prior] restraint” including showing that there was an actual threat to national security or imminent harm that would result from publication. Learn More
- Industrialization and Urbanization (1870-1920): 11.5 (b)
- Cold War (1945-1990): 11.9 (a)
- Social and Economic Change/Domestic Issues (1945-Present): 11.10 (a), 11.10 (b)
- Foundations of American Democracy: 12.G1 (c), 12.G1 (f)
- Civil Rights and Civil Liberties: 12.G2 (b), 12.G2 (c), 12.G2 (f)
- Rights, Responsibilities, and Duties of Citizenship: 12.G3 (a)
- Public Policy: 12.G5 (d)
- “Crown v. John Peter Zenger, 1735,” posted by the Historical Society of the New York Courts
- First Amendment Timeline, posted by The Free Speech Center
- First Amendment – Freedom of the Press Timeline posted by the Annenberg Classroom
- “Interpretation & Debate: Freedom of Speech and the Press,” posted by the National Constitution Center
- Resources Archive, posted by the Reporters Committee for Freedom of the Press
New York Times v. United States (1971),” posted on C-SPAN’s Landmark Cases, providing information, videos, and discussion of the case.
“Freedom of the Press: New York Times v. United States,” from the Annenberg Classroom. This video explores the importance of freedom of press under the First Amendment and its history in the United States, and includes a discussion of the landmark Supreme Court decision in New York Times Co. v. United States (1971), the Pentagon Papers case, which held the government’s prior restraint of the press was unconstitutional. Here is a lesson plan to accompany this video.