A Brief History of Freedom of the Press

By: Liz Thomason

The right to press freedom is one that shapes the lives of Americans on a daily basis, usually without our realizing it. Despite the public’s lack of conscious awareness of this right, former Supreme Court Associate Justice Felix Frankfurter has called press freedom “no greater and no less than…the liberty of every citizen of the United States.” Other Supreme Court Justices have referred to freedom of the press as a provision that must be considered something not enjoyed exclusively by media personnel themselves, but instead as a principle that allows for the protection of American society and the public at large. These strong expressions of the immense value of press freedom in our daily lives are also due to the United States’ unique view on the subject. 

Even today, American press law is considered “an international and historical anomaly” due to the public’s liberty to freely criticize public officials and even to publish information related to national security while remaining largely free from prior restraint and aggressive censorship efforts. In fact, the press’ imperfect and at times sensationalist nature has remained a fundamental consideration in the Court and government’s commentary on its position in society. The spectrum of possible behavior by the press spans from “arrogant, tyrannical, [and] abusive” to “incisive, probing, and informative,” but the choice of what to publish remains, to a reasonable extent, squarely in the hands of editors. Knowingly publishing falsehoods remains a punishable offense, and one of the foundations of press freedom is the media’s ability to speak the truth without the threat of punishment or governmental censure. Therefore, the Founders crafted the First Amendment and enshrined a liberty not “contingent on good behavior,” but instead one “worth preserving despite missteps, mistakes, and excuses.”

Despite the proliferation of and lasting respect for such lofty ideals, there remain certain topics and potential publications that much of the public, whether libertarians or “would-be censors” believe must not be printed. Considering the vast ideological difference between these extreme worldviews, the lasting debate concerning press freedom centers on what topics fall under the category of justified censorship or require increased regulation. Social media, sensitive information concerning national security, strong criticism of the government and public officials, and obscenity constitute some of the most contentious topics at the center of disputes regarding the tension between press freedom and the government’s desire to execute its functions and enforce laws related to defamation and equal protection. Questions also concern the exact nature or definition of “the press” under the First Amendment and its role in society. In particular, whether or not the press is entitled to privileges other than those enjoyed by the general public, especially in the context of newsgathering.

The Court has played a central role in interpreting the First Amendment and applying the principle of press freedom throughout its tenure. A unique and notable relationship exists between the Court and the press due to the judiciary’s dependence on public opinion, both to make decisions and to ensure the continued existence of a base of public support on which its authority can rest. On the other hand, the press relies on the Supreme Court due to its position as “the ultimate guardian of the constitutional rights” that safeguard reporters’ ability to write and publish freely. However, this relationship has been tumultuous, and the current Court has adopted an attitude defined by indifference in regards to press freedom. This choice is inconsistent with the origins of press freedom in liberal political writing and comes at a moment when the rise of social media threatens the traditional press to an unprecedented extent.

Early Theoretical Origins of Press Freedom

Freedom of the press was derived from the ideas of several notable liberal political thinkers of the seventeenth and eighteenth centuries, such as John Locke, John Stuart Mill, Adam Smith,  John Milton, and James Madison. In Areopagitica, his seminal work on free speech , John Milton wrote, “…so Truth be in the field, we do injuriously by lecencing and prohibiting to misdoubt her strength. Let her and Falshood grapple; whoever knew Truth to put to the wors, in a free and open encounter[?]” This foundational support for a melting pot of ideas and its ability to push society towards the truth and an improved communal existence cemented itself in liberal tradition. Nevertheless, it is significant that Milton saw clear and objective distinctions between falsehood and truth and that he did not view press freedom as an absolute right. Instead, he viewed only expression that supported the quest for truth as legitimate, and anything falling outside of this narrow aim should remain unprotected due to its perceived lack of genuine societal value. 

Milton shared this view with John Locke and numerous other well-regarded political and philosophical writers at the time who believed that freedom of the press and “government prosecution of wide areas of expression” could and should coexist. John Stuart Mill, however, expanded these existing foundations into a more expansive idea of press freedom, particularly due to his focus on the risks of majority tyranny. Mill recognized that truths could originate from minorities and even individuals, and argued for the protection of such ideas even if false, since gaining a better understanding of the inaccurate allows us to narrow down our search for truth. Ideologies based on individual freedom and self-determination that were relatively free from governmental censorship developed in tandem with parallel economic philosophies, specifically laissez-faire and free trade. The core principles of these practices defined liberal tradition at the time, especially the common good. Consequently, the incentive to cultivate a lively trade market bolstered by a competitive press industry provided even more reason to support press freedom.

The writings and ideas of these thinkers remain relevant today, despite authors’ differing perceptions of the reasonable limits of individual freedoms. However, considering the vague nature of the phrase “freedom of the press” and the cultural and technological changes that have occurred over the last century, it is clear that these authors’ conceptions of press freedom are likely distinct from those of the current U.S. Supreme Court. Nevertheless, judges and attorneys often “cite without qualification or clarification” the words of thinkers like Milton and Mill to bolster their arguments in support of free press, despite the fact that these writers did not support a total prohibition of legal consequences before or after publication. Therefore, though the theoretical origins of press freedom were integral to its legal germination, their applications to modern-day debates in support of its expansion appear somewhat dubious.

Influence of Common Law and English Tradition

Along with political and philosophical literature, the development of press law and practice in England greatly influenced its importance in the minds of the American Founding Fathers. The concept was not created in a vacuum and was contextualized by the English public’s rejection of absolute monarchical authority and embrace of individual rights. A free press provided opportunities for individual education and cultivated a significant check on the government’s power through the communal diffusion of pertinent information. Though Milton’s Areopagitica, published in 1644, instigated the British public’s movement against licensing laws, which required that all publishers obtain explicit approval from the government or religious authorities in advance of publication, it was not until thirty years later that those laws were repealed. In their place, seditious libel laws were established, which criminalized any publication “disrespectful of the King, State, Church, or their Officers,” demonstrating the entanglement of press, speech, and religion and foreshadowing later debates over libel restrictions in the United States. Freedom of the press was established as a common law right in England by the end of the eighteenth century, but it was limited; publications remained subject to punishment and legal consequences if such media ran contrary to the interests of the government. This shift created an environment of de facto censorship, where though the government did not require explicit approval of all publications, the threat of retaliation against those who dared to dissent prevented the press and the people from being truly free to express themselves.

De facto censorship was considered somewhat less offensive than prior restraint, a term coined by William Blackstone that today refers to governmental orders “‘forbidding certain communications when issued in advance of the time that such communications are to occur.’” Blackstone believed that press freedom was defined by the inability to lay “previous restraint,” but that, similarly to other political thinkers, publishers remained subject to the consequences of their work, particularly potential criminal prosecution. At the time, England’s licensing protocols required prior approval of all publications by the church or the government, leading the writers of the U.S. Constitution to include press freedom in the Bill of Rights to “bar the federal government from emulating the Crown” with respect to the institution of universal licensing. The English government attempted to enforce a similar system in the colonies until the 1720s, after which the system lost favor in England and such efforts ceased, though the shadow of seditious libel remained. As a result of licensing’s expiration, support increased for the view of expression as “common property for all people” rather than a power exclusively reserved to the privileged. Though the impact of increased freedom of the press in England was acutely felt because the shift greatly expanded peoples’ ability to disseminate even controversial views, the early American government significantly expanded the concept to one that now encompasses protections for criticism of government and society as well as the publication of opinions that are “unpopular, subversive, and even just plain hateful.”

Freedom of the Press in the Colonial United States

The Framers of the United States Constitution embodied the emerging English ideas of individual rights within the revolutionary American context, with Benjamin Franklin referring to the liberty of the press as one which every American would fight and die for. Thomas Jefferson, the architect of the Declaration of Independence, was a particularly vocal supporter of press freedom, stating at one point that if forced to choose between “a government without newspapers or newspapers without a government,” he would opt for the latter. However, he also adhered to the Blackstonian theory promulgated by the philosophy’s namesake, William Blackstone, to the extent that he thought that publishers should be held liable for endorsement of false information. Jefferson also agreed with numerous other American Founding Fathers that the newspapers of the time tended to lie and sensationalize much more often than they published truthful information. These varied remarks demonstrate the complex nature of freedom of the press due to the influence of conservative and monarchical English tradition, along with the more radical beliefs espoused in political literature at the time which were adopted by the Framers in their efforts to distance themselves as much as possible from the oppressive policies of the Crown. 

The colonial conception of press freedom also drew on the newer English view of the press as a form of education for the common man, with an emphasis on the belief that education concerning the past and present will “enable [the people] to judge of the future” and to improve ordinary people’s knowledge in order to exercise a check on government power and corruption. Though the press can appear to be destabilizing if and when it questions elected officials and the legitimacy of government, the American Founders believed that “long-term accountability is more important than short-term stability” and chose to prioritize freedom of expression over regulatory authority. Therefore, the Founders acknowledged both the powerful nature of the press and the need for it to remain largely outside of government purview in order to facilitate both intrastate and national communication. More specifically, early pillars of American governance enshrined their support of the United States’ establishment and continued existence through a continual “war of words” between a free press and a government with the desire to prioritize its interests and legitimacy.

Freedom of the Press as an Enshrined Right

Despite the respect of the Framers for press freedom and its necessity in a republic, the United States Constitution “contained no guarantee” of it, even though nine out of the thirteen colonies had included it in their charters prior to the Republic’s founding. While Alexander Hamilton, Founding Father and inaugural Secretary of the Treasury, sought to defend the omission of press freedom by arguing that the liberty of the press could not be well-defined and relied on public opinion rather than governmental assurance, the public and opposing political figures felt differently. The lack of press and speech protections was raised at numerous state conventions, eventually contributing to the development of the Bill of Rights, with James Madison as the architect of the First Amendment. Madison also supported the Bill of Rights due to the legitimacy he felt it would provide the new government through the protection of individual rights against government interference. The Virginia Declaration of Rights, which included the first guarantee of press freedom and came to be considered “one of ‘the fruits of genuine democracy’” was an integral guide on which Madison relied while crafting the First Amendment. His original version and the Virginia Declaration included a reference to press freedom as “one of the great bulwarks of liberty,” a phrase which was later removed by the Senate.  This reference likely alluded to an essay railing against prior restraint written by British philosophers John Trenchard and Thomas Gordon under the pseudonym Cato, a text which was well-known and often cited by early members of the United States’ government to defend press freedom. 

Madison proposed his original version of what would become the First Amendment to the U.S. House of Representatives in 1789, and it was ratified by the states two years later. The amendment proscribed  “federal abridgment” of press freedom by Congress and indicated the vital importance of this right in a constitutional republic. The particular language precluding the deprivation or abridgment of the fundamental rights to speak, write, and publish “reflects the concept of preexisting rights,” which in turn alludes to Jefferson’s well-known reference in the Declaration of Independence to inalienable individual rights. Despite the risks and inevitable abuses that the assurance of press freedom would bring, Madison remained steadfast in his view that it is preferable to allow for such necessary tradeoffs in the forms of “noxious branches” than “by pruning them away, to injure the vigour of those yielding the proper fruits.” However, the amendment’s vagueness led to debate over whether the Framers intended to provide the press with freedoms greater than those established for speakers more generally and with respect to common law, which has led to modern-day disputes over the legitimacy of press privilege. The extent to which press freedom prevents prosecution of defamatory publication and prior restraint were also significant questions raised due to the non-expansive nature of the First Amendment, though based on the political atmosphere at the time it appears that prior restraint was the “principal evil” the Founding Fathers aimed to impede. 

Though the widely held view of the Framers as steadfast supporters of liberal press freedoms has remained in place, twentieth-century historian Leonard Levy challenged such presumptions by instead contending that the Bill of Rights “was more the chance product of political expediency…than of principled commitment to personal liberties.” He put forth a revisionist theory that early Americans adopted Blackstone’s framework that freedom of expression encompassed protection against prior restraint but not from post-publication legal consequences, whereas the existing notion remained that the Founders consciously embraced freedom of the press in all respects. Levy’s work became incredibly influential within the legal field, with his label of American press freedom as a “legacy of suppression” being invoked by the Court in its seminal ruling on New York Times Co. v. Sullivan in 1964. This case was especially notable because it led the Supreme Court to establish a relatively high burden for supporting charges of libel and appeared supportive of an expansive interpretation of press freedom. Though it is impossible to know the exact thoughts of the U.S. Constitution’s authors on press freedom and the legitimacy of seditious and other forms of libel, it is clear that prior restraint was the primary manner of suppression that they sought to prevent.

Press Freedom and the Sedition Acts of 1798 and 1918

The First Amendment’s support for individual liberties related to the press was almost immediately compromised by the passage of the Sedition Act of 1798, which stated that any publications consisting of untrue or malicious criticism of the country, government, or president were prohibited under penalty of criminal prosecution for seditious libel. Known for its difficulty to define, seditious libel is generally understood to refer to “the crime of publishing criticism of the government, its men or measures” as defined by the ruling authority. The illiberal nature of the Sedition Act led to a crisis concerning the genuine definition of free expression or free press, and later to a long-term shift away from Blackstonian doctrine and towards a more liberal definition that excluded both prior restraint and seditious libel laws instituted to suppress criticism. The act also entrenched a significant cause-and-effect relationship between suppression of free press ideals and large-scale radical violence. This relationship was solidified in the following decades as pro-slavery mobs launched destructive and violent attacks on many abolitionist publications due to the government’s de facto approval of action against disfavored ideas and the institutions that published them.

Supporters of the Sedition Act defended it by claiming that it did not infringe upon any standards set by the First Amendment, namely that it did not sanction prior restraint and that truth was a legitimate means of defense against prosecution. However, the ramifications were targeted toward opponents of the sitting administration, particularly Jefferson and his supporters, and constituted a practice of majority tyranny and efforts to suppress minority dissent. No matter how spirited the government defended the content-neutral basis of the Sedition Act, it remained true that it was not weaponized against the government itself or any ideas of which it approved, but rather its critics and those subjectively deemed a threat to its operation. The adverse effects of the act were keenly felt by those who had suffered them, leading Jefferson to pardon all who had been prosecuted under it almost immediately after assuming the presidency.  

At the time, Madison disagreed with the acts, stating that the intentions of the First Amendment were to “entirely disable the federal government from regulating the press.” This notion illustrated developing support for departure from traditional Blackstonian press ideals and a lack of consensus concerning the “legal boundaries of freedom of expression” in the immediate aftermath of the First Amendment’s ratification. The controversial foundations and impacts of the Sedition Act and its quiet end led to more than a century free from similar legislation criminalizing criticism of the government, with numerous scholars concurring that no national legislation punishing dissent can be found between the Sedition Act and the start of World War I. Though the Sedition Act’s constitutionality was not reviewed by the Court at the time, in New York Times v. Sullivan (1964) the Court took great pains to declare the statute’s lack of constitutional support and consistency with the principle of free press, demonstrating the large-scale shifts in public and governmental perceptions of press freedom over time. However, timeless themes of the struggle between press freedom and governmental authority remain apparent, with one expert on the Sedition Act commenting during the McCarthy era that “[in] times of change and danger…a sense of continuity with generations gone before can stretch like a lifeline across the scary present.”

The timeless nature of debates over press freedom is demonstrated by the re-emergence of federal seditious libel restrictions with the Sedition Act of 1918, which criminalized “willfully disloyal and defamatory reports” concerning the government and military efforts during wartime. World War I served as a sufficiently disruptive crisis that incentivized Congress to sacrifice individual rights for the sake of a unified public response to war, in spite of the pushback against the Sedition Act of 1798 upon its initial ratification. In response to the law’s passage, Justice Holmes expressed his belief that the First Amendment obliterated any notion of seditious libel within common law that could remain consistent with constitutional principles, especially considering the harm such laws can do to public discourse. On the contrary, history seems to indicate that seditious libel was not seen as out of the question or entirely inappropriate by the Founders in comparison to the unquestioned need to outlaw prior restraint, but instead that the government learned over time that seditious libel restrictions were “inconsistent with the maintenance of the public debate and honest criticism of government” to an extent that inherently infringed upon the intentions of the First Amendment. 

Federalism in the Context of Press Freedom

The finalized wording of the First Amendment specifies only that “Congress shall make no law…abridging the freedom of speech or of the press,” which implies that the only body that is expressly and constitutionally precluded from restricting these rights is the federal legislature. It is often forgotten that the Bill of Rights applied almost exclusively to the federal government until the ratification of the Fourteenth Amendment in 1868 and the later incorporation of First Amendment freedoms by the Court due to their fundamental function in relation to ordered liberty. Beforehand, only local constitutions and laws prevented individual states from restricting press freedom, meaning that they could suppress certain publications or persecute avid dissenters without running afoul of the First Amendment. The Framers had considered the federal government a much more threatening force than those of the states due to their experience with the Crown’s tyrannical policies. Consequently, the idea that the national government needed to “protect against state invasions of the rights of the people” was one that was very rarely adopted. 

As a result of both the federal government’s reluctance to involve itself in further press regulation and the divisive impacts of the Sedition Acts, very few cases related to press freedom were considered by the Court before the beginning of the twentieth century, leaving many questions including the constitutionality of seditious libel and potential justifications for prior restraint unanswered. Additionally, a lack of test cases well-suited to “put meat on the bones” of press freedom largely precluded the Court from deciding seminal cases on the topic until the early 1920s. It was not until the Gitlow v. New York decision in 1925 that the First Amendment was formally applied to state and local law, and not until the 1931 Near v. Minnesota decision that the press clause was explicitly referenced in application to the states. This process of incorporation, which largely took place between 1920 and 1968, sought to correct the “double standard” created in 1791 by the discrepancies between state and federal adherence to the U.S. Constitution. Because most governmental action that directly impacts citizens’ daily lives is in the hands of state and local governments, the elimination of the double standard fundamentally changed the federalist doctrine within the United States by requiring state governments to obey the same standards they had circumvented since even before the ratification of the Bill of Rights. 

Twentieth-Century Free Press Jurisprudence

Particularly from the 1930’s to the 1960’s, the Court engaged significantly with the press freedom clause of the First Amendment. Characterized as “an evolution of steadily expanding liberty,” the Court’s press-related jurisprudence during the twentieth century sought to integrate the original intentions of the authors of the Constitution with technological advancement and settled public opinion against seditious libel laws. Despite the Court’s institutional interest in mitigating the relationship between the government and the press, legislative and executive authority remained largely hostile, with President Wilson going so far as discussing the creation of a nationally sanctioned publicity bureau to “give people the real facts” due to his perception that newspapers sowed division and embittered the public. Though “censorship and prior restraint of the printed word are repugnant under our Constitution,” the issue the U.S. Supreme Court had to address was, and continues to be, how the executive and legislative branches can adhere to constitutional principles in this context while also “doing justice to the other legitimate needs of government,” such as supporting the public good and the people’s safety. 

Near v. Minnesota (1931)

As one of the initial First Amendment-related cases that elevated press freedom to seminal constitutional status, Near v. Minnesota allowed for the formal incorporation of the Press Clause through the due process clause of the Fourteenth Amendment, and “for the first time held that a government regulation violated the Constitution’s guarantee of freedom of the press.” In 1925, the state legislature of Minnesota passed a law forbidding newspapers from publishing “malicious, scandalous, and defamatory” content by classifying it as a public nuisance. Any publications found to have done so would have the articles in question suppressed, and the owners would be subject to prior restraint against ever again publishing similar information. The Saturday Press, a paper run by Jay Near and Howard Guiford in Minneapolis, published multiple editions claiming that members of law enforcement, the mayor, police chief, and local attorney were colluding with Jewish gangs–accusations which were eventually believed to be false and intended to promote antisemitism–and neglecting their duties, leading the state to charge the paper under the statute and to an assassination attempt against Guiford.

Rather than relying on the “clear and present danger” test previously established by Schenck v. United States in 1919 in the context of free speech, Chief Justice Hughes instead harkened back to Blackstonian doctrine and put forth an interpretation that did not forbid prior restraint in all circumstances, but qualified its appropriateness in relation to extraordinary circumstances, including attempts to commit treason or to impede the government in wartime. However, the cases set out by Chief Justice Hughes did not include criticism of public officials, the issue at the center of the Near case, meaning that Minnesota’s law allowing for prior restraint could not stand under the press freedom clause of the First Amendment. This case created an exceptionality standard holding that prior restraint cannot be justified “except in such rare cases as the reporting of troop ships sailing in time of war, reporting that might do irreparable damage to national security,” an issue that would later be revisited in New York Times v. United States following the Pentagon Papers leak in 1971. The Near decision explicitly recognized that the First Amendment “prohibits prior restraints by government to prevent speech or publishing from taking place” other than in those particular circumstances defined by the Court, thereby entrenching the foundational definition of American press freedom for at least two centuries. 

Though this case perhaps no longer has relevance in the midst of an information revolution, Near continues to be the primary decision the Court references in more recent cases related to prior restraint. The question of the type of speech involved in the case continues to cause debate because some claim that it addresses obscene speech related to unfounded accusations propped up by discriminatory stereotypes against Jewish people rather than political speech motivated by legitimate criticism of the officials mentioned. Despite these continued debates, Near remains the clearest “denunciation of prior restraint that the Supreme Court has issued,” and also provides support for the conception of the press’ institutional function to ensure accountability and prevent corruption within the government. According to Chief Justice Hughes, ensuring the continued existence of a free press through the disavowal of prior restraint creates space for open political discussion, meaning that changes can be brought about peacefully rather than through rebellious and violent means, thereby ensuring “the security of the Republic.” Near therefore contributes to that monumental purpose by establishing a baseline for generally forbidding prior restraint and favoring the need for an uninhibited press over the potential backlash or abuses that will inevitably come about, seeing it as a necessary exchange to support the good of the republic.

New York Times Co. v. Sullivan (1964)

In a decision generally seen as “the single most important free-press decision ever made,” the Court held that “actual malice” – either knowledge or significant expectation of falsity – must be proven for public officials to succeed in libel suits against news organizations. L. B. Sullivan, the elected Public Safety Commissioner in Montgomery, Alabama, interpreted an advertisement published by the New York Times as significantly harming his reputation, leading him to sue the paper. The advertisement, entitled “Heed Their Rising Voices,” criticized the state law enforcement’s treatment of Martin Luther King, Jr. and was supported by numerous high-profile civil rights activists; however, multiple factual errors were found throughout the article, giving credence to the claim of libel. Though Sullivan was not named in the advertisement, he believed that he was entitled to sue due to his professional responsibility to manage Alabama law enforcement. The Montgomery County Circuit Court sided with Sullivan and awarded him $500,000, equivalent to over $5 million today, leading the Times to appeal to the U.S. Supreme Court.

The Court found that the only legitimate proof of defamation offered by Sullivan was based on witness testimony of his damaged reputation and that such evidence and minor factual errors in the advertisement were not significant enough to pass as libel. Furthermore, it was unreasonable to expect the paper’s advertising staff to verify every piece of factual information that passes through, especially within those submitted by figures seen as responsible, such as the activists behind the “Heed Their Rising Voices” write-up. Taken altogether, these findings precluded Sullivan from substantiating his claims of libel under the “actual malice” standard established for public officials in this case, leading to a “historic, resounding victory for the news media” with one philosopher describing the announcement of the decision as “an occasion for dancing in the streets.”

In the majority opinion that cemented the “actual malice” test as a bright-line rule, Supreme Court Justice William Brennan, Jr. held that necessitating the truth of all factual observations made by news publications would limit opportunity for public debate, referencing the Sedition Act of 1789 and its use to punish those who dared to criticize the actions of government officials in demonstrating the lack of support for such measures in hindsight. The Sullivan opinion goes “out of its way to declare the long since repealed Alien and Sedition Acts unconstitutional,” and notes that liberty to criticize government activity and particular officials is exactly the type of expressive freedom that the drafters of the Bill of Rights, in crafting the First Amendment, sought to safeguard. Actual malice dictates that media outlets cannot be held liable for their statements unless the publisher either had proven knowledge of the falsity beforehand or “recklessly disregarded the fairly high probability that the statements he was printing were false.” This rule provides significant protection to the media by preventing suits based exclusively on ill will or common law malice from disrupting press freedom and the ability of journalists to criticize public officials as they please unless they consciously spread false information. 

In Justice Black’s concurring opinion, he cited the ideas of Thomas Jefferson, writing that he did not believe that a country can be free “where its people can be made to suffer physically or financially for criticizing their government,” adding to the increasing opposition towards strict libel laws targeting government criticism. Similarly to obscene speech, libelous expression was historically considered unprotected by the First Amendment and, in England, was the principal regulatory weapon following the degradation of prior restraint as a legitimate means of censorship. However, in Sullivan, the Court “drives a stake through the heart of seditious libel” and signaled the start of a major shift in favor of press freedoms. Another shift caused by Sullivan was the standardization of libel regulations across states. Previously, state libel rules varied wildly, with only some extending qualified privilege to individuals denouncing public officials. Therefore, Sullivan created a federally uniform means of limiting seditious libel liability when remarks concern public officials.

The Sullivan decision also broke barriers by applying the protections of the First Amendment to the field of advertising, considering it to be a tangential extension of press function. This shift demonstrates a comprehensive conception of the press industry and the corporate management of advertisements by news media conglomerates in order to maximize profit. Acknowledgment of the entanglement between the press and advertising also ties back to the origins of free press in laissez-faire and free market ideals, foreshadowing the fall of traditional print media as a result of the Internet’s meteoric rise. Additionally, this decision indirectly comments on a significant remaining question regarding the nature of press freedom by implying that the media are not “entitled to special protections that are separate from or more extensive than the public generally,” otherwise known as press privilege. The press privilege conflict considers whether the right to a free press simply guarantees journalists the same freedoms any member of the public could exercise through the right to free speech as opposed to particular privileges greater than that of an average citizen, creating tension between the two clauses and cultivating scholarly debate over whether free press can or should supersede free speech in some circumstances.

The context of New York Times v. Sullivan is also extremely relevant to its outcome, which expanded press freedom and protections against libel suits and explicitly recognized the press’ fundamental responsibility to hold government and other public officials accountable. This case addressed efforts by the government of a southern state with racist, anti-Black values to pressure a national media outlet due to their unrelenting discussion and coverage of civil rights demonstrations, which had encouraged the public to support activist efforts and learn more about the media’s unflattering portrayal of Alabama and other southern states’ governments at the time. “Heed Their Rising Voices” advocated on behalf of one of the foremost leaders of the Civil Rights Movement, and the Court’s decision served as a de facto affirmation of activist’s goals from which a new and relatively expansive interpretation of press freedom emerged. 

In subsequent decisions, the Court continued to extend press freedom to criticize public figures. In two cases considered in 1967–Associated Press v. Walker and Curtis v. Butts–the Court held that “private individuals who willingly take part in public affairs” must also meet the actual malice standard to avoid infringing upon freedom of the press. Chief Justice Warren commented that the American people must be allowed and encouraged to exercise their “legitimate and substantial interest in the conduct of such persons,” considering that even unelected or non-front-facing public servants wield significant influence over public policy and citizens’ everyday lives. However, when reviewing comparable cases concerning private individuals or subjects outside of the public’s purview, the Court is much less willing to extend First Amendment protections to speakers and publishers, demonstrating a clear delineation between the public and private spheres in terms of who must be held most accountable by the press. 

The Court’s holding in Sullivan does not preclude the press from reporting neutrally or even favorably on government activity, but rather seeks to explicitly protect its right to be critical since a government is logically more likely to attack unsympathetic coverage. In addition, freedom of the press is tied not only to the practice of publishing itself but also to the development of a diverse and abundant press that supports and encourages lively public debate. Press freedom is also intrinsically linked with the quest to improve our government and society at large, similar to John Stuart Mill’s ideas of seeking truth through disagreement and preventing majority tyranny from silencing dissenters. This idea was reflected in the words of Judge Learned Hand, who wrote that the core purpose of press freedom is to promote the “dissemination of news from as many different sources, and with as many different facets and colors as is possible.” Therefore, press freedom is not only timeless, but depends upon consistent action by the public and restraint from the government to ensure its continued existence. Without a diverse and varied press, the freedom to publish effectively becomes moot.

New York Times Co. v. United States (1971)

National security and the idea that “there is a special danger in the printed…word” were brought to the forefront in New York Times Co. v. United States, which famously addressed the 1971 publication of the leaked Pentagon Papers by multiple national media outlets, namely the New York Times and the Washington Post. The Times’ initial publication commenced a serialized release of a secret study commissioned by Robert McNamara, the Secretary of Defense, focused on the origins and saga of the Vietnam War; the released materials consisted of thousands of pages of both expert analysis and documentary evidence of the United States’ involvement in and goals related to the intervention. It came to be known as the Pentagon Papers, and its release led to intense criticism of the executive administration over their handling and covering up of illegal actions, including the bombings of Cambodia and Laos. The report exposed repeated lies from the president and federal military officials to Congress and the public concerning the extremity and extent to which the United States had involved itself in the conflict. The report also illustrated that the Vietnam War was simply seen as an exploitable avenue that would allow the government to more easily achieve its goals in Laos, Vietnam, and Cambodia at the time, disproving claims that involvement was solely motivated by patriotic interest in preventing the spread of communism.

On June 13th, 1971, the Times published the initial excerpt from the study, which was formally titled “History of U.S. Decision-Making Process on Viet Nam Policy,” and the Post began releasing extracts on June 18th. Investigations eventually concluded that Dr. Daniel Ellsberg, one of the study’s authors and a former Pentagon official, had leaked the documents to the press, and the federal government immediately sought a federal injunction to prevent further publications due to national security concerns. The Federal District Court in New York refused to issue an injunction against the Times due to concerns of infringing upon First Amendment press freedoms, but the Second Circuit Court of Appeals overturned, leading the Times to seek review by the U.S. Supreme Court. The District Court in Washington, D.C. also refused to censor the Post, and the District of Columbia Circuit Court agreed, causing the Department of Justice to appeal to the Court as well. 

The two cases continued up the judicial ladder, with the Court hearing arguments on June 26th, 1971, and releasing a per curiam opinion four days afterward. Constituting an odd array of opinions, the majority ruling was technically issued on behalf of the entire Court, but was accompanied by six concurrences and three dissents, clearly demonstrating the justices’ varied views in a heavily politicized case. The Court stated that “any system of prior restraints on expression comes…bearing a heavy presumption against its constitutional validity,” meaning that the burden was on the executive administration to justify its efforts to prevent the publication of the Pentagon Papers. The government had, in the eyes of the Court, failed to meet that burden, leading to the rejection of its claims and to a decision that underlined the vital importance of press freedom even and especially in situations where the government cites national security interests to prevent the public from turning against it. In his concurrence, Justice Black wholeheartedly put his faith in the First Amendment as a protector of the press’ right to “publish news, whatever the source, without censorship, injunctions, or prior restraint,” demonstrating once again the new acceptance of restrictive libel laws and injunctions as equivalent to prior restraint in terms of the extent to which they infringe upon press freedom. Justice Black also emphasized the goal of the press to “bare the secrets of the government,” a duty that depends rather significantly on the ability of the press to learn and gather knowledge about what the government is doing.

Chief Justice Burger and Justices Blackmun and Harlan filed dissents, which criticized the unnecessary and unwise haste with which lower courts and the U.S. Supreme Court decided this case. Rather than taking issue with the substantive issues at the core of the controversy, the dissenting justices all “voiced respect for the First Amendment’s prohibition of prior restraint,” at the very least as it revolved around the government’s efforts to prevent further publication of the Pentagon Papers. On the other hand, a majority of the justices indicated in their opinions that in extreme situations, comparable to those discussed in Near that could compromise war efforts and national security in the moment, prior restraint could be justified depending on the context. Furthermore, it is necessary to note that the First Amendment protections of the press do not preclude journalists from being liable for criminal behavior that they may see as fundamental to the newsgathering process, such as breaking and entering to access information. Therefore, press freedom does have limits, though they are relatively few compared to the government’s burden in such matters. The right to know is a somewhat radical concept that has been cited by journalists to justify such actions in the name of rightly informing the public of their government’s conduct, but there is a “vast difference between the right to publish what you know and the means by which you acquire that information.”

The impacts of this case were felt far outside of the parties immediately involved in litigation and illustrated the “extreme distrust” felt by the public and news outlets in a decade defined by the Vietnam War and Watergate. One’s opinion on the ethics of the Pentagon Papers’ publication depends largely on whether one sees the United States’ involvement in Vietnam as justified. As a result, those who generally sided with the government found the Times’ actions indefensible, while those in opposition saw the Times as a “sorely needed champion of democracy” in the face of a war seen as a conspiracy against the people. Such divisions demonstrate the flighty and biased nature of judicial opinion as a whole due to the judiciary’s reliance on public opinion in order to maintain its legitimacy. Such volatility contributes to the observation that the First Amendment was designed to make certain that the treatment of journalists and news media “does not depend on one’s sympathy or antipathy to policies of the Government,” but instead on well-defined bright-line rules and legitimate standards against which cases can be examined. 

Government distrust intensified rapidly in the period surrounding the New York Times v. United States decision, prompting former Secretary of Defense and head of the C.I.A. James Schlesinger to comment that in the past “the American public assumed that the United States was number one, that its writ around the world was a wise writ, and that when it chose to intervene it would do so wisely.” The rise of antipathy towards the federal government and the executive branch, in particular, led the public to call more strongly for checks and accountability from government officials. Furthermore, the Court’s decision avoided the question of whether Congress could, through legislative action, outlaw the publication of classified material during wartime, meaning that the legislative branch could allow for the restriction of press freedom based more significantly on executive discretion. This case harkened back to previous decisions revolving around press freedom, particularly Near v. Minnesota, by further limiting prior restraint to “cover injunctions barring publication of ‘national security’ secrets…” 

The inherent tension between the obligation of the press to report on government activity and the government’s interest in keeping information out of the public eye has also impacted the Court’s own practice of avoiding leaks and maintaining its institutional integrity. The Court has largely avoided such collapses of confidentiality, but before the announcement of its decision in National Federation of Independent Business v. Sebelius in 2012, CBS reported that Chief Justice Roberts had joined the other conservatives to strike down the individual mandate when the Justice had in fact done the opposite, highlighting increased scrutiny on the Court even seemingly at the expense of publishing unproven information. Recent degradation of confidence in the Court has led to further difficulties with security. For example, the Dobbs opinion seemingly leaking before an official announcement was made in the groundbreaking reversal of Roe v. Wade, leading to monumental public outcry comparable to the response when the Pentagon Papers were published. 

This case demonstrates the danger of allowing the government to “confuse some opinion leaders and co-opt others” or to withhold some information at its own discretion without allowing the people to serve as a check on unbridled behavior that could lead to widespread corruption. New York Times v. United States and the Times’ actions revealed whether candidates were being truthful about their policy proposals and therefore to what extent they were adhering to their responsibility to act according to the will of the people as their representative in a republican government. Furthermore, this case sheds light on which individuals should be held responsible for past policies, allowing constituents to become better informed and more well-prepared to vote in future elections, allowing the political system to function more democratically.

Twentieth-century free press jurisprudence transitioned from a strict Blackstonian model to a “more particularistic analysis” that has considerably expanded press freedoms and limited the ability of censors to prevent publication based on discretion. Prior restraint was effectively eliminated, leaving the media open to publishing whatever they pleased with the knowledge that they remain subject to potential legal consequences related to newsgathering and potential national security conflicts. Overall, the twentieth century solidly established freedom of the press as a vital constitutional right enjoyed not only by journalists themselves but by all as consumers of news who depend on the press to understand one another, themselves, their society, and their government more deeply.

The Impacts of the September 11th, 2001 Attacks on the World Trade Center

Despite the unprecedented regulations put into place to expand press freedom during the twentieth century, in subsequent decades the First Amendment was “under the most severe attack that it ha[d] been under in recent years” due to a lack of faith in government and law enforcement. This notion of government as an obstacle or potential censor impinging upon individual liberties continued into the twenty-first century, especially following the attacks on the World Trade Center in New York City on September 11th, 2001. Press freedom “suffered a notable decline” in 2002 on a worldwide scale, and journalists were prevented from thoroughly reporting due to political conflict and government-instituted restrictions on media coverage related to national security concerns and terrorism. In the United States, domestic press restrictions were strengthened when the nation prepared to send troops to Iraq, including efforts by Attorney General Ashcroft to limit the access of government documentation through the Freedom of Information Act. However, the government later allowed journalists to train and join frontline troops to report on the conflict in Iraq, which was a departure from previous practices of banning media presence in the field or being closely surveilled by military personnel.

Though numerous reporters sought to cover the Iraq War from the frontlines and aimed to publish truthful information with as little bias as possible, many were overly accepting of the government’s explanations for prolonging the conflict. According to one reporter, “too many of us blinked and the nation was far worse for our drifting from our core purpose” of questioning information and seeking truth, especially in a time defined by upheaval and uncertainty. Journalists sought to satiate the appetite of Americans to learn everything possible about “how the horrific terrorist plan had come together…and how it was executed” in addition to the origins and activities of al-Qaeda and Osama bin Laden, and reporters therefore often focused on “mak[ing] sense of the moment” rather than questioning government-provided narratives. 

As the conflict escalated and troops were also sent to Afghanistan, reporters continued tagging along with military units to cover the frontline. Many journalists involved in such experiences regret not asking more critical questions about resource allocation and justification for employing special operations, as well as American propaganda surrounding weapons of mass destruction and their use in the Middle East. As the war continued and became increasingly controversial, reporters began asking more pointed questions of their government in spite of “the predictable blowback from the administration,” which had relied on unity in patriotism to bolster support for military operations. In hindsight, journalists have realized that the delay between the start of the conflict and the point at which the press finally saw through the half-truths being peddled by the federal government “played a part in turning a blind eye to the government policies that were responsible for the tragedy.” During times of crisis marked by intense expressions of patriotism, questioning one’s government can be misconstrued as antipatriotic and overly instigative, leading to a lack of willingness by journalists to challenge government representatives and official narratives. 

Freedom of the press post-9/11 centered on de facto restrictions that arose from the hostility of the federal government to the press’ concerns about the Iraq War on both the domestic and international fronts. Furthermore, the increasing popularity of the Internet and the collapse of print media revolutionized the information economy and contributed to “shrinking revenues, job layoffs, and general uncertainty” as well as more apparent corporatization of the field of journalism. As local, decentralized publications were consolidated and standardized to support a more streamlined economic model, reporters were dissuaded from seeking out stories that could antagonize governmental entities due to the potential threat such attention posed to the enterprise’s reputation and worth, which was only exacerbated by the rise of social media and the incremental breakdown of local news.

Freedom of the Press Amid the Information Revolution

In spite of assertions by Justice Potter Stewart in his 1974 speech, “Or of the Press,” that the press enjoys unique constitutional protection due to its status as “the only industry singled out by the Constitution,” the Supreme Court has generally held firm that the media is not entitled to rights beyond those held by individual speakers of the public at large. However, the creation and popularization of the Internet and social media has muddled the definition of the press and blurred the line between media outlets and government, creating difficulties in interpreting freedom of the press in a time when a majority of Americans consume news on platforms such as Facebook and X (formerly Twitter). 

One of the basic assumptions of the First Amendment, that being that the press is independent and distinct from the government, has been challenged by the rise of official social media accounts that government officials use to connect with constituents. Because the idea of a government-sanctioned press has long been considered antithetical to the conception of the press as a check on government power, the relationship between the public and their officials has been complicated. Additionally, historically mutually beneficial relationships between news media and the government have been largely nullified because officials have become aware that working with the press is no longer the sole method of ensuring “dissemination of their message to constituents,” forcing the press to scramble to find a novel and legitimate role in a changed society. Beyond the shift towards social media as a tool for candidates and officials to directly connect with constituents, authorities are now able to surveil the press much more effectively, remain aware of what journalists are doing, and root out the sources from which they gather information, a theory that underscores the need for a press that is genuinely free from government intervention and meddling.

The establishment of social media as a platform for political interaction has not only challenged traditional news organizations to adapt, but also increased the risks caused by the lack of content moderation, fact-checking, and context, especially because platforms like X value concision above all else. Rather than being educated by professional journalists who are backed by their organization’s regulations and an institutional directive to share truthful and relatively objective information–notwithstanding the evident existence of bias among reputable news organizations as well–now “anyone can be a news publisher, regardless of their expertise, sense of fairness, or motives.” Established and reputable papers including the Times and the Post are no longer the dominant frontrunners of American journalism, but simply one of an infinite number of options. Such options can seem arduous when considering the length of articles and their relative complexity compared to short social media posts that may be biased or missing crucial context. On the other hand, mass communication innovations have broken down barriers to information dissemination and eliminated the need to be a member of a reputable news organization to function as the press, which has increased inclusion while also bringing up essential questions about what “the press” truly is when almost any individual can easily fulfill responsibilities historically seen as part of the “exclusive province of the press.” As demonstrated by the advent of podcasts, newsletters, and publications spearheaded by everyday individuals, the information revolution requires us to reckon with our conception of “democratic press liberty” to an unprecedented extent in order to prioritize and preserve this concept within the framework of American tradition as well as in our present and future.

One of the clearest benefits of consuming news through social media is the low or nonexistent entry cost, as most popular platforms are free to use due to their advertisement model. Commercial struggles have consumed the news industry and endangered this profit-based advertising model, and attempts to compensate with the use of online advertising and paywalls have simply caused users to turn to free or lower-cost options, which are often less reliable and contribute to the dearth of traditional newspapers and the death of local news. Economic fortitude had long been counted among the press’ greatest strengths and means of support, but the industry has shifted from the “equivalent of ‘a license to print money’” to one that is “‘very much in free fall.’” As a result, news organizations and companies are no longer able to fund aggressive newsgathering and exhaustive investigative reporting as robustly and often struggle to defend themselves against legal threats.

The loss of local news is one of the most worrying consequences of the economic decline of the industry as a whole, as local journalism allows communities to remain informed of “what is happening in their backyards.” Local coverage is the focal point of small-scale news, especially because such perspectives are not available with large- and national-scale sources that focus on major headlines that interest the entire nation or world. Since 2005, the United States has lost approximately a quarter of its local newspapers, which foreshadows further collapses as social media continues to take its toll on traditional sources of communication. Local newspapers are fundamental as a check on local and state governments in the same manner that larger outlets cover the federal government. Therefore, their loss creates a vacuum in which the entities keeping communities and cities running are doing so with “little to no coverage,” meaning that because most are not able to attend and keep a literal eye on their governing bodies, public meetings are essentially occurring without a means of accountability or a method that allows constituents to remain informed and to comprehend the actions of their representatives. This reality constitutes a threat to democracy and republican governance as a whole because, if the public is kept from knowing what their elected representatives are doing, they are unable to exercise a significant check on their power, which could allow for increased corruption due to the lack of oversight and endanger the nation as a whole.

As the media has been burdened with questions of economic support and a need to define its parameters, the public’s confidence in the institution as a whole has declined significantly, as well as that of major governmental institutions, including the Court. The Roberts Court has largely refrained from discussing press freedom, especially compared to past justices, leading the public to wonder what the place of press freedom is with the rise of social media and the loss of local and traditional news. Confirmation bias and popular platforms’ desire to keep people keyed in by providing sources that align with their existing beliefs have cultivated political fragmentation and the mistaken belief that one’s ideology is correct because it is being affirmed by one’s news feed. Politicians and officials have successfully exploited these algorithms to more easily convey their views to constituents, leading to more extremism and party divisions. 

Consistent attacks by conservative media on the reputability of mainstream media have reduced public confidence and “damaged the press’ stature and reputation with many American citizens.” Public perceptions of inaccuracy and consistent bias in news have increased, as well as assertions that mainstream news is being controlled behind the scenes, with significant stories being left by the wayside and partisan narratives being pushed to the forefront. Furthermore, though the public has historically seen the press as an essential pillar upholding democracy, “recent polls show an equal number saying that it actually harms democracy,” illustrating a marked shift in confidence that has both contributed to and resulted from the information revolution and increased partisanship among the public and press outlets. This cyclical relationship between the decline of traditional press and declining confidence in it as an institution has contributed to the need to clearly define what the press is in a constitutional and general context and its legitimate role in successfully upholding democratic governance and confidence in American society.

Executive Administrations and Threats to Press Freedom

Beginning in the Nixon administration, the breakdown of tentative trust between the government, public, and news media contributed to increased hostility and surveillance of the press that threatened its freedom. Nixon’s presidency acted as an “inflection point” due to the role of investigative journalism in Watergate and the deceitful measures he was willing to employ, including wiretapping and intimidation, in order to cover up his indiscretions. Despite the Department of Justice claiming that such surveillance was rare and concurred that such behavior goes “against the spirit of the [F]irst [A]mendment,” the Nixon administration set the scene for further spying during the Trump and Obama administrations. Though President Trump’s reputation for disparaging the press makes all other presidential actions seem tame in comparison, Obama’s administration was the most hostile towards reporters since Nixon. During his tenure, Obama led “three times as many prosecutions of whistleblowers and leakers than…in all previous administrations combined,” and manipulated the post-9/11 environment to wield presidential authority against journalists and especially against sources within the government. Therefore, though President Trump compounded on the anti-press rhetoric coming from the Oval Office, Nixon and Obama were instrumental to the origin and entrenchment of such ideology from the federal executive.

Though Obama was certainly not allied with the press, his actions pale in comparison to President Trump’s reputation as its archenemy. On a regular, and at times daily, basis during his first term, Trump went after the media, consistently referring to certain sources as partisan or biased and subjecting a fundamental pillar of democracy to aggression from the highest level of the federal government. Many recognize President Trump’s invocation of the term “fake news,” which was employed to damage public confidence in the press in the lead-up to the 2016 election, but President Trump has also gone after libel laws and the legitimacy of the press on an institutional level. Libel laws remain largely in the hands of the states, preventing the federal government from interfering to a certain extent, but nevertheless, President Trump argued that existing frameworks “are a sham” and that they “do not represent American values,” though he has refrained from proposing a reintroduction of seditious libel by focusing solely on the perceived fallacies of the actual malice standard established in Sullivan. Trump’s claim that libel laws are anti-American doesn’t appear to function logically, though, as their relative protection of publishers in spite of mistakes is unique and “exceeds that of every other common law country,” highlighting the democratic values of individual liberties and public input in governance embodied in today’s libel laws.

The results of Trump’s unrelenting attacks on the press have been profound and have lasted long after the end of his first term in 2021. At the start of his presidency, polled levels of public confidence in the press reached the lowest levels ever documented by Gallup, with press approval ratings now being exceeded even by presidential approval ratings, which have also plummeted in recent years. In addition to denigrating the press on an institutional level, President Trump has also leveraged his influence against particular outlets, reporters, and stories that he found to be unfavorable, which resulted in selective denials of access to information and threats of legal action based not on actual wrongdoing, but on impulsive anger in the hands of our nation’s chief executive. The decline of peoples’ trust in the press has also influenced the world at large, with President Trump’s rhetoric providing tools for authoritarians in places such as Kenya and the Philippines to further intimidate media who oppose their rule, especially in combination with widespread misinformation propagated by social media. The global impacts of President Trump’s efforts can be seen with the imprisonment of Evan Gershkovich of the Wall Street Journal by Russian authorities simply for doing his job as a reporter, an action which the United States has deemed a clear example of wrongful detainment. Though Gershkovich was released in August of 2024, his imprisonment and status as the first American journalist to be charged with espionage since the Cold War’s end illustrates the extent to which attacks on press freedom have only intensified in the past few decades.

All in all, the efforts of executive administrations to surveil the press, suppress potential leaks, and prevent unfavorable coverage from being seen as legitimate have been compounded to intimidate the entire industry, resulting in an intense chilling effect on the de facto liberty of the media to report and share vital information with the public. The entrenchment of a liberal concept of free press defined by protections against libel and the absence of prior restraint has been put at risk by the efforts of presidential administrations in the late twentieth and twenty-first centuries, especially that of President Donald Trump, to attack “‘the very legitimacy of the press as an independent actor in American public life.’”

Future Implications and Remaining Issues of Press Freedom

Though the Bill of Rights serves as an ideal to which American governance can aspire, it does not exist in a vacuum and requires constant effort and accountability from the public and officials to uphold its principles of individual liberties and personal rights. Threats to press freedom today take myriad forms, with the most notable of the moment being the current attempts to prosecute Julian Assange, the founder of Wikileaks, as well as President Trump’s continual efforts to delegitimize media he sees as unfavorable to him and the Roberts Court’s lack of acknowledgment of press freedom throughout its tenure.

Merrick Garland’s Department of Justice asserted that it would refrain from spying on members of the press unless criminal activity was involved. However, Julian Assange has been indicted on numerous charges of Espionage Act violations, although his actions – creating trusting relationships with sources who eventually share information with him, requesting further knowledge and documents, and publishing them – are simply those of many reporters who seek to share information about the government by learning about current goings-on from insiders rather than legitimate violations of law. Therefore, the charges against Assange demonstrate that any journalist can now effectively be surveilled and prosecuted for “‘doing their jobs,’” eroding the meaning of free press through intimidation and suppression of legitimate newsgathering.

The Assange case is unique because normally the government employee accused of leaking classified information is at the forefront, but in this instance, a publisher is being indicted simply for “making that material available to the public,” which imperils the ability of publishers to release privileged information in a manner reminiscent of the era before the New York Times v. United States decision. Though Assange is not technically a journalist, nor is he affiliated with any established news organization, the Espionage Act and similar regulations do not discriminate based on the identity of the offender, meaning that nothing would preclude the Justice Department from charging a traditionally defined journalist in a comparable situation. The American Civil Liberties Union has echoed public sentiment in referring to Assange’s prosecution as a “‘direct assault on the First Amendment,’” and the situation as a whole demonstrates the lengths to which the executive administration will go to punish leakers and publishers of information that reflects badly on the government, further threatening the sanctity of press freedom.

Because presidents can support the continued existence of press freedom or “make things exceptionally difficult” for the journalism industry depending on their particular inclinations towards press and specific outlets or reporters, one must also consider the more recent actions of President Trump now that his second term has begun. In advance of his election, anxieties concerning the possibility of a second Trump term skyrocketed, as many predicted that his administration may prioritize “taking the final step” to “crippling the power of the free press” and eroding the authority of the Constitution and the Bill of Rights in the United States. Even before his inauguration President Trump began this process by filing suits against various media and news companies, including ABC, CBS, and the Des Moines Register, and he recently achieved a monumental victory with ABC’s announcement in December that they would settle the suit for $15 million. Because the actual malice standard presents a remarkably high burden for public figures in order to win such defamation cases, ABC’s choice was seen as an indicative of an “attitudinal shift” because today’s press industry is “exponentially less confident that a given jury will value press freedom, rather than embrace a vilification of it” due to efforts in the past few decades to delegitimize news media as a whole. Consequently, similar lawsuits that President Trump is pursuing are increasingly viewed as chances to gain political capital by extracting similarly high prices from companies often seen as the backbone of today’s press, and the companies’ potential choice to settle decreases their reliability in the eyes of the public even though the suits likely would not have succeeded in court.

The Roberts Court and Freedom of the Press

In spite of the Roberts Court’s reputation as a supporter of First Amendment freedoms, it has become clear that its championing of speech as the “favorite child” has “not been extended to the constitutional right of press freedom.” The Court’s citation of press freedom as a sacrosanct right has decreased to a point seemingly indicative of judicial indifference to the concept, with levels of reference being lower today than at any other point since the First Amendment was incorporated and applied to the states. Furthermore, outside of the formal Court context, multiple justices have roundly criticized the press in recent years, illustrating a profound disregard that likely has an impact on the Court’s general ignorance of freedom of the press within its recent jurisprudence. The absence of “true advocates of the right” of press freedom on the current Court is keenly felt, with all positive and most neutral references to press freedom having disappeared from decisions and rulings entirely.

Though press freedom requires Court-wide recognition to be fully maintained, especially in times of such dire need of support as the current moment, Chief Justice Roberts “has done almost nothing to keep the constitutional right of freedom of the press conceptually alive,” having referenced the concept only four times, and exclusively in a neutral tone, throughout all of his written opinions. On a Court-wide scale, the amount of references to press freedom from 1995 to 2019 has been only a dismal 23% of the number seen between 1935 and 1974, when the expansion of press liberties by the Court reached its peak. Therefore, the Chief Justice’s lack of attention to press freedom and the Court’s general ignorance of it have contributed to decreasing confidence in the industry from the government and public and deprived the media of a necessary pillar to support its legitimacy.

Justices Thomas and Gorsuch fulfill a separate but certainly more threatening role relative to freedom of the press: that of hostile conservatives who have proposed the possibility of reconsidering the actual malice standard established in New York Times v. Sullivan. Justice Thomas, contrary to his place as the “top user of the press-freedom frame,” is also the justice who has advocated the most for restricting press protections. In opinions related to denial of certiorari in multiple cases, including McKee v. Cosby and Coal Ridge Ministries Media v. Southern Poverty Law Center, Justice Thomas has discussed his desire to revisit or potentially overrule New York Times v. Sullivan, which would “strangle the media’s ability to report freely” and to criticize public figures. Justice Gorsuch has also argued that New York Times v. Sullivan should be reconsidered and that challenges to the actual malice standard should be heard by the Court, largely because he feels that the bright-line rule leaves many “‘without necessary recourse for grievous defamation,’” including ordinary American citizens. Such a shift in free press jurisprudence coupled with the Trump administration’s efforts to effectively silence the weakened news media industry through aggressive lawsuits constitutes a “warning” encouraging the public to become more active in supporting the maintenance and expansion of press freedom, especially for the purposes of reining in the government.

The Roberts Court’s seemingly ignorant and somewhat hostile attitude towards press freedom appears to be at odds with its embrace of freedom of speech, and it has become clear that the right of free speech and free press have been decoupled by the Court in recent years. In the late twentieth century, free speech was a “constant traveling companion” to freedom of the press, but the Court now nearly always refers to freedom of speech as a solitary and singularly defined right, or at least combines it with rights other than press freedom when citing them. In the past, freedom of the press has been considered a representative of the liberty of expression, but late twentieth-century jurisprudence and public attitudes focused on speech at the expense of news liberty, contributing to the marked hostility towards the press seen today. Additionally, though some have claimed that the lack of affirmation by the Roberts Court of press freedom is attributable to a dearth of opportunity, its constant citation of and unprecedented interest in protecting other First Amendment rights leads such an argument to “ring all the more hollow.” As a whole, the Roberts Court’s refusal to acknowledge press freedom has only prolonged and intensified debates over questions including the position of social media, whether a right to press privilege exists, and whether the newsgathering process is protected by the right to a free press.

The Court, as the ultimate interpreter of the Constitution and the laws of the United States, is already being asked to weigh in on many of these questions, particularly that of social media and the applicability of free speech and free press guarantees to its usage. In previous cases, the Court has held that the First Amendment applies only to restrict the regulation of speech and press by the government, meaning that social media platforms, as privately owned companies, are currently able to limit speech and expression according to their own preferences. Two cases recently considered by the Court asked whether state laws can limit platforms’ ability to moderate content and whether the First Amendment should or does apply to apps such as Facebook, X, and Instagram. The Florida law at hand prevents companies from restricting the distribution of content posted by or concerning candidates for government office, while the Texas law prohibits social media platforms from “blocking, removing, or demonetizing content based on the users’ views,” begging the question of how social media platforms should address obscenity and other forms of unprotected expression without running afoul of such legislation. Relevant precedent, especially Miami Herald v. Tornillo, a 1974 decision that banned the government from requiring private news organizations to print replies by public officials to criticisms, illustrates that publishing writing by individuals inherently favors certain viewpoints because it is impossible to equally value every possible opinion or perspective, especially when the facts of a situation point to a particular analytical conclusion. The Court’s decision, which remanded the cases to the requisite lower courts and provided guidance that generally appeared to disprove of the laws’ breadth in regulating speech on social media platforms, signals a surprising but slight shift in the Roberts Court’s attitude towards press freedom and the extent to which social media must adhere to the provisions of the First Amendment, but whether the Moody v. Netchoice decision will have any influence over the Court’s future holdings related to press freedom remains unknown.

Conclusion

The press has been viewed throughout history as a “great engine of knowledge” on which our democracy depends to ensure that the will of the majority remains informed and that the public can make the wisest possible decisions when electing representatives and weighing in on policy. As the line between government and press becomes more and more difficult to define, the need to protect the free press over the potential threat of a “government-run ‘Truth Tribunal’” is paramount to bolstering democratic principles in years defined by uncertainty and a lack of confidence in essential democratic institutions ranging from federal elections to individual privacy. Since its inception, the press has been a source of accountability for institutions, especially with respect to all levels of government, highlighting its necessity to continue to support democratic values and strengthen the nation as we move into the future. We must not sacrifice an abundant and diverse press to a “monopoly of truth” that suppresses questioning and disagreement, as the marketplace of ideas and the notion of debate as a harbinger of truth and advancement is fundamental to a republican state.

Though deference to tradition and the foundations of press freedom are significant, its meaning has shifted with the passage of time and the changing context of current events. It is necessary to strike a balance between remaining faithful to the origins of press freedom and considering its meaning in the present, as “freezing the meaning of a principle or freeing it from the context in which it arose are equally false to history.” The reasons for which the Framers chose to include press freedom in the First Amendment still ring true, but their logic has been expanded and revolutionized with societal, political, economic, and technological advancements that have changed the meanings of press and freedom and required us as a people to reckon with our desire for news within a democratic society. The incredible importance of a lively and liberated press to the people at large proves that the right to press freedom is not “just journalists right,” but rather “the right of every citizen in this country,”and one that we must each take great pains to protect in order to preserve our nation and its principles long into the future.

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