Ms. Gokturk Journalism

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Freedom of the press

The first newspaper in colonial America was shut down by the authorities under a Massachusetts law requiring a license, but it was closed as much for what it said as for the licensing law. Early newspapers had little freedom as we know it today.

The most significant colonial case involving press freedom is New York v. John Peter Zenger. Zenger established Weekly Journal in New York, November 1733 the second NYC paper. The New York governor, William Cosby, was fairly tyrannical and had dismissed a popular chief justice, Lewis Morris. Zenger's paper sided with Morris, attacking Cosby. This led to his arrest on charges of criminal libel (which entailed imprisonment as well as a fine). The courts were stacked against him, but Benjamin Franklin became interested in the case and persuaded Philadelphia lawyer Andrew Hamilton, in his 80s, to defend Zenger.

The statute required only proof that Zenger was the publisher (i.e., not proof that it was a lie -- in fact, it was accepted that he could tell the truth and still be guilty of libel). Hamilton admitted this -- but he turned the focus to the paper's language: were the statements false, malicious, and/or seditious? The jury found for Zenger although there were no legal grounds, since truth not officially recognized as a defense. The case helped to promote a freer reign in political commentary.

During the debate over the Bill of Rights, First Amendment guarantees of free speech and press were promoted particularly by the anti-Federalist side, who feared government oppression. The amendment only prohibits Congress from making laws abridging freedom of the press, but it typically has been applied at state levels as well.

Other limitations on free press have included: actual libel; protection of defendants' rights to a fair trial (setting up a conflict of constitutional rights), threats to the public safety (the journalistic equivalent of yelling fire in a crowded theater) -- but this latter is much harder to define -- and obscenity to various degrees. Many supporters of the First Amendment will defend all cases, applying the slippery slope principle (i.e., any limitation on a free press begins to erode the legal protections and may lead to further limitations -- besides which, an established limitation may be used as a pretext for suppressing publications that have offended politically).

Libel Law and Ethics

Libel = injury to reputation through publication of negative information. Technically, any injury to reputation by something published or broadcast is libel, whether it is true or false.

What will be seen by the courts as libel:

Only the first two are likely problems today, although one may have trouble with reports of sexual conduct and/or AIDS.

Defenses against libel:
Truth is an absolute defense. But it must be provably true; i.e., you must not only believe it to be true but you must be able to provide evidence of its truth. This can be a problem with anonymous sources, or with incautious reliance on official reports. You can't say Jones started a fire because the police say he did, only that he is accused of starting a fire.
Privilege applies only to government officials acting within their official capacities. But journalists have a limited privilege to report such statements if they do so within a complete and accurate report of events -- such as accusations made in open court, statements by the President, etc. Note, though, as above, you can't state as a fact that someone broke the law, only that the President/congressman/attorney/whoever said that the person in question broke the law.
Fair comment applies to arts critics and sports columnists who are clearly expressing an opinion. You can say someone is a lousy artist if that is your critical judgment; you can say a baseball player should be benched or traded if that is your professional opinion. Ditto criticism of public officials in clearcut opinion pieces. But be careful about your motives. If you say "Joe Smith deserves to be traded to the bottom of the league" because you have a personal animosity toward Smith, and not because it is your supportable professional opinion, you may still be found guilty of libel.
Tests of libel applicability:
Public officials must show actual malice -- i.e., not just that the material is untrue but that it was published with a willful disregard of whether its true or not. This dates to NY Times v. Sullivan, 1964 -- the Times published an ad from a civil rights group that the Montgomery (Ala) commisioner thought falsely libeled the police. The Supreme Court upheld the Times, citing a necessary legal and judicial commitment to an uninhibited and robust public discussion of the issues. So Sullivan could not collect, even though he might have been able to prove falsehood; the Times was judged not to have shown malice.
Questions for the jury in actual malice cases:
Is the publication defamatory?
Is the publication false?
Did the publisher know it was false, or did it disregard questions of accuracy?
The answers to all three must be "Yes" for libel to be found.

Avoiding Libel

 

[Taken from Dr. Wally Hastings, Northern State University <http://lupus.northern.edu:90/hastingw/journlaw.html>]