Just after saying Congress shall not abridge freedom of speech, the First Amendment protects freedom of the press with four simple words — “or of the press.”
The Founding Fathers realized that a free press served a key role in the new constitutional democracy, informing the public and monitoring the activity of government. Earlier state constitutions called a free press “one of the great bulwarks of liberty.”
The U.S. Supreme Court has often protected the freedom of the press from government abridgement or infringement. In the following five passages, various justices rose to eloquence on the importance of freedom of the press.
In Lovell v. Griffin (1938), the Supreme Court overturned the conviction of Alma Lovell — a Jehovah’s Witness who distributed and sold religious pamphlets without first obtaining permission from the city manager in Griffin, Ga. Many of the Court’s First Amendment precedents were forged from instances of suppression against Jehovah’s Witnesses, who often ran afoul of local officials. In his opinion for a unanimous Court, Chief Justice Charles Evans Hughes declared that the First Amendment applied to more than mainstream newspapers and magazines:
“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest.”
An unfettered press
In Grosjean v. American Press Co. (1936), the Supreme Court addressed the constitutionality of a targeted attack on the press in the form of a selective tax. Popular Louisiana Gov. Huey Long supported the measure. But the high court, in a opinion written by Justice George Sutherland, rejected the tax as a gross violation of the First Amendment. Sutherland detailed abuses against the press committed by the government throughout history. He wrote in a stirring passage:
“A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.”
‘A powerful antidote’
In Mills v. Alabama (1966), the Court invalidated an Alabama law that prohibited newspapers from publishing election-day editorials. This law seriously invaded the editorial autonomy of newspapers and violated core values of the First Amendment. Justice Hugo Black captured this idea elegantly in the following passage:
“Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.”
Watchdog role: baring secrets, exposing deception
One of the reasons the First Amendment safeguards press freedom is that the press can serve as a watchdog, protecting the public’s interest and serving as a key check on government. The Supreme Court recognized this role in the “Pentagon Papers” case — New York Times Co. v. United States (1971), when the government sought to prevent The New York Times from publishing a study on the conduct of the Vietnam War. Justice Black wrote powerfully about the press’ role in his concurring opinion:
“The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.”
Responsibility ‘cannot be legislated’
In Miami Herald Publishing Co. v. Tornillo (1973), the Supreme Court addressed the constitutionality of a Florida law that required newspapers to give political candidates the opportunity to reply to negative editorials or attacks in the newspapers. Pat Tornillo, a candidate for the Florida House of Representatives, contended that the First Amendment should include a right of access to the press to ensure diverse viewpoints.
The justices unanimously rejected that view in an opinion by Chief Justice Warren Burger, who correctly viewed the Florida law as government encroachment on the press’ editorial judgments. He Burger said was not the government’s job to regulate the press and ensure its so-called responsibility:
“A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”
David Hudson Jr. is a Freedom Forum fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of several First Amendment books, including “Let The Students Speak!: A History of the Fight for Freedom of Expression in American Schools” (2011). He is also the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment,” Now You Know Media (2018).