“Or of the Press”: A Deeper Look into the History of the Free Press

Image by Luciano via Flickr
Image by Luciano via Flickr

A Review of Attacks on the Press and a Justice’s Dissent

By Roy Gutterman – Director, Tully Center for Free Speech, Syracuse University

Free Press Under Attack

When news broke this May that the Department of Justice had secretly obtained telephone records and email data belonging to CNN’s Pentagon reporter Barbara Starr, it set off more alarms that press freedom has been under attack.

The recent revelation builds on earlier reports that the DOJ under President Trump also obtained records from Washington Post reporters. These incursions into the sacred art of newsgathering happened in 2017. As shocking as this is, the revelations do not come as a surprise. President Trump had openly attacked the press before, during, and after his presidency.

Before this, most of Trump’s anti-press sentiment – which included casting the press he did not like as “the enemy of the people” – was simply vitriolic rhetoric. The surreptitious and illegal surveillance of the press mirrors the actions of dictators and authoritarian rulers. It also harkens back to a Nixonian enemies list, which included many journalists.

Beyond his rhetoric, during his presidency, Trump attempted to silence book authors with restraining orders and other litigation. His pre-presidency penchant for libel lawsuits, unsuccessful ones at that, were bad but not as concrete as the invasions of the newsgathering process made under color of government authority.

In fairness, the Obama administration aggressively sought to investigate and prosecute leakers, subpoenaing similar information from the Associated Press in 2013. However, after that scandal, the DOJ revised its policies in subpoenas against the press.

The Tightrope of the Press and Law Enforcement

Law enforcement authorities argue that in some circumstances, they may have to seek critical, sensitive information from media sources. These extremely narrow settings would pertain to serious national security investigations or, as the Supreme Court ruled in 1972, matters before federal grand juries.

The case, Branzburg v. Hayes (1972), was a consolidated set of cases testing the boundaries of the reporter’s privilege, the doctrine that would allow a reporter to avoid testifying in court or turning over information related to confidentiality that those reporters granted to their sources.

Branzburg emerged in the early 1970s and was an important precedent following a decade of cases from the 1960s defining the importance of the First Amendment and the press.

Even though the press serves as an important function in informing the public under the First Amendment, and is protected under other areas of the Constitution, the majority opinion in Branzburg states that when it comes to federal grand juries and laws of general applicability, reporters have no greater rights than ordinary citizens. That means the reporter’s privilege may be overridden if law enforcement is able to identify a great need for the information they are privy to.

Branzburg Limitations: Protection of the Press

But the concurring opinion by Justice Lewis Powell and the dissenting opinion from Justice Stewart bring the case together and reiterate important First Amendment values.

Justice Powell, whose concurrence was the vote that brought the case to a majority, wrote that subpoenas against the press would not be tolerated if they were not linked to a legitimate law enforcement purpose or if they were intended solely to harass or intimidate the press.

Justice Potter Stewart, on the other hand, went further in his dissent, stressing the “critical role of an independent press in our society.” A free, independent press “enlightens” citizens, sometimes fueled by information gathered confidentially. When law enforcement can compel reporters to reveal confidential information, it runs the risk of annexing the press – as an additional “investigative arm.”

The risk and the harm are obvious: Who would talk to reporters or reveal important information, perhaps even break the law doing so, if law enforcement could simply command the reporter to reveal those confidential sources, or simply be a conduit for government investigations? Reporters across the media rely on a variety of sources to get stories and information to readers, viewers, listeners, and followers.

“No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised,” Stewart famously wrote.

Stewart proposed three influential prongs in press subpoena cases: 1) the government must show that there is probable cause to show the reporters have information clearly related to a violation of the law; 2) law enforcement must show that the information cannot be obtained any other way, less destructive of the First Amendment; and 3) that there is a compelling and overriding interest in the information.

These are procedural hurdles for the government but also important legal doctrine. Many of Justice Stewart’s points have been incorporated into the Department of Justice guidelines for subpoenaing information from the press.

These guidelines operate with a certain trust that the DOJ will not abuse its power and invade the newsgathering process without a compelling reason. And, to the best of our knowledge, it does not happen often, but when it does it is an affront to the First Amendment and a threat to the freedom and independence of the press.

The Importance of the Free Press

Freedom of the press has been a hallmark of American democracy for as long as the Republic has existed, beginning under the auspices of protection from government censorship. And it still is, but there have been challenges in recent years.

Much of our modern protection of the free, independent press emanates from the 1960s. The 1964 New York Times v. Sullivan case is central to our protections under the First Amendment.

For those of us on the press advocacy side, we like to find special significance in the fact that free press and free speech rights are among the first of our protected civil and human rights in our Bill of Rights. In addition, throughout the entire constitution, the only non-government institution expressly noted is the press.

Some, like myself, like to point to this as recognition by the Framers of the Constitution that the freedom of independent press,  speech, and thought, play a vital role in the democracy; despite there being no concrete legal support for this proposition otherwise. The “preferred position” of the First Amendment has never carried a majority on the Supreme Court, but it has been part of rationales in a handful of cases, including Sullivan.

Perhaps, a return to Justice Stewart can add more perspective.

In 1974, Justice Stewart gave a famous speech at Yale Law School which was published in what is one of the most-cited law review articles, “Or of the Press.” With the backdrop of the Washington Post’s coverage of Watergate pushing President Nixon out of office and the growth of investigative reporting, Stewart examined the institutional press’s constitutionally protected position.

Here, Stewart lauded the role of the organized or institutional press – the Fourth Estate – that provides not only a critical mirror on government but serves as a neutral conduit for the exchange of ideas and information. This fulfills the constitutional role envisioned by the Framers of the Constitution.

There is tension between the press and the law. But Stewart said, “Newspapers, television networks, and magazines have sometimes been outrageously abusive, untruthful, arrogant, and hypocritical. But it hardly follows that eliminations of a strong and independent press are the way to eliminate abusiveness, untruthfulness, arrogance, or hypocrisy from the government itself.”

In the 21st Century, we can add modern media, the internet, entertainment, and social media to Stewart’s list to help us fulfill our search for the truth. And, that is the truth.

This article is part of  Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.

Roy Gutterman
Roy Gutterman
Associate Professor & Director, Tully Center for Free Speech | Website

An expert on communications law and the First Amendment, Roy Gutterman is director of the Newhouse School's Tully Center for Free Speech at Syracuse University. He writes and speaks on media law, free speech, the intersection between courts and journalists, and legal education issues. Gutterman was head of the AEJMC Law and Policy division from 2019-20, and is program director for the Burton Foundation for Legal Achievement.  He sits on the Freedom of Information Committee for the Society of Professional Journalists and the faculty committee for the Government Accountability Project in Washington, D.C. He is a graduate of the Newhouse School and the Syracuse University College of Law.

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