When the First Amendment
to the U.S. Constitution speaks of the freedom of the press,
it most likely refers primarily to two contemporaneous press media: pamphlets and newspapers. Newspapers, in particular, have proven especially dangerous to the careers of public officials—and, for this reason, especially prone to unwarranted censorship.
When New York journalist and publisher John Peter Zenger
publishes material criticizing the British colonial government, local officials respond by ordering his arrest on charges of seditious libel. The Scottish lawyer Alexander Hamilton, not to be confused with the Founding Father of the same name
, successfully defends Zenger in court by persuading a jury to nullify the charges against him. The free speech clauses of the First Amendment were later proposed as a more-or-less direct response to this case.
1790The First Amendment states that "Congress shall make no law ... abridging the freedom of speech, or of the press..."
1823Utah's criminal libel law allows journalists to be prosecuted under the same kinds of "seditious libel" charges used against John Peter Zenger in 1735. Other states soon follow suit.
Elijah P. Lovejoy is lynched by an angry white mob in Alton, Illinois for publishing the Alton Observer
, an anti-slavery newspaper.
In Near v. Minnesota
, the U.S. Supreme Court establishes that states may not, with very rare exceptions, exercise prior restraint on newspaper publication without violating the First Amendment. As Chief Justice Charles Evans Hughes writes in his majority ruling:
If we cut through mere details of procedure, the operation and effect of the [Minnesota] statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter-in particular that the matter consists of charges against public officers of official dereliction-and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship ...
While reckless assaults upon public men, and efforts to bring obloquy upon those whon are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, expecially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with offical misconduct.
The ruling establishes one clear exception to the restriction on prior restraint—wartime censorship—but is, in other respects, a clear and potent strike against the idea of legitimate prior restraint. The ruling has stood, largely unchallenged, for over 80 years.
1964In New York Times v. Sullivan, the Supreme Court rules that journalists may not be criminally prosecuted for publishing "seditious libel" regarding public officials unless actual malice can be proven.
In New York Times Company v. United States
, the Supreme Court upholds Near v. Minnesota
and blocks the Nixon administration's attempts to restrict publication of the Pentagon Papers