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Yemen’s [[Probable year:: 1991]] Constitution contains no explicit protections for press freedom but includes the “expression of opinion in speech, writing and photography” under its protections on freedom of expression (Constitute Project, “Yemen's Constitution of [[Probable year:: 1991]] with Amendments through [[Probable year:: 2001]]” ). +
Article 20 of Zambia’s [[Probable year:: 1991]] Constitution protects press freedom under freedom of expression: “no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to impart and communicate ideas and information without interference, whether the communication be to the public generally or to any person or class of persons, and freedom from interference with his correspondence" (Constitute Project, "Zambia's Constitution of [[Probable year:: 1991]] with Amendments through [[Probable year:: 2016]]" ).
This clause first appeared in Article 22 of Zambia’s [[Probable year:: 1962]] Constitution (World Statesmen, "Laws of Zambia: The Constitution"). +
Article 20 of Zimbabwe’s [[Probable year:: 1980]] Constitution first protected press freedom under freedom of expression: “Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence" (Refworld, "Constitution of Zimbabwe, [[Probable year:: 1980]]" ).
Today, Article 61 of Zimbabwe’s [[Probable year:: 2013]] Constitution protects press freedom: “Every person is entitled to freedom of the media, which freedom includes protection of the confidentiality of journalists' sources of information…Broadcasting and other electronic media of communication have freedom of establishment" (Constitute Project, “Zimbabwe's Constitution of [[Probable year:: 2013]]” ). +
The first piece of legislation granting citizens freedom of the press was the Swedish Freedom of the Press Act of [[Probable year:: 1776]]. The law allowed for free printing of anything that did not oppose religious faith, did not attack the constitution, and was not otherwise indecent (Nordin [[Probable year:: 2017]], 137). In [[Probable year:: 1950]], the European Convention of Human Rights accepted these same limitations for free press. The Swedish Freedom of the Press Act also gave citizens access to view official state documents. While other European countries had some level of free press, such as the Netherlands, the right to free press was not written into law (Nordin [[Probable year:: 2017]], 138). The right to freedom of the press was accepted more globally with the publication of the United Nations Universal Declaration of Human Rights in [[Probable year:: 1948]], which states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” (United Nations [[Probable year:: 1948]]) . Still, according to Freedom House, the population of the world with freedom of the press as of [[Probable year:: 2017]] was only thirteen percent, due to limitations imposed by authoritarian regimes and Russian and Chinese regimes seeking to expand their global influence. There were even reports of threats to journalists and limitations to freedom of the press in some democracies (Dunham [[Probable year:: 2017]]) .
As for the United States, the first guarantee of freedom of the press was written by George Mason in the Virginia Declaration of Rights in [[Probable year:: 1776]] (Bogen [[Probable year:: 1983]], 429). Thomas Jefferson revised Mason’s statement that “all men are born equally free and independent” when he wrote the Declaration of Independence (Vile). Likewise, James Madison later used the Virginia Declaration of Rights to help him in drafting the First Amendment in [[Probable year:: 1791]]. Specifically, the line “The Freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained by despotic Governments,” within the Virginia Declaration of Rights shows great similarity to Madison's later proposal for the guarantee of freedom of the press within the Bill of Rights (Bogen [[Probable year:: 1983]], 445). Freedom of the press was accepted as a fundamental right for the United States as a whole with the ratification of the First Amendment in [[Probable year:: 1791]] which states that, “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 to peaceably assemble, and to petition the Government for a redress of grievances” (U.S. Const. amend. I). Freedom of the press is intertwined with freedom of speech, and both rights are seen as fundamental (Stewart).
Multiple human rights regimes at both international and regional levels enshrine the universal freedom of expression in their frameworks, in accordance with the democratic values that these documents uphold. Although in international documents this freedom relates mostly to the unabridged ability of individuals to express their thoughts and opinions, it also protects media and press institutions that disseminate news and information throughout societies.
In the context of international human rights regimes, freedom of expression is guaranteed by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). In both documents, freedom of expression is found under Article 19. In the UDHR, the right is listed as such: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (UN, 2014) Article 19 of the ICCPR is worded very similarly but includes greater specificity, as it explicitly lays out protected ways to consume and impart information, including “...orally, in writing or in print, in the form of art, or through any other media of [one’s] choice.” (OHCHR, 2014)
Regional human rights regimes also enshrine freedom of expression in a similar manner. The Organization of American States’ (OAS) Declaration of Principles on Freedom of Expression is composed of 13 articles that lay out protections of the freedom of expression and nuances of those protections in various contexts, including accessing information, censorship, communication freedoms, and privacy aspects. The American Declaration on the Rights and Duties of Man includes the freedom of expression in Article 4, with similar wording to Article 19 of the UDHR and the ICCPR. The African Charter on Human and Peoples’ Rights protects the right to “receive information,” and the right to “express and disseminate [one’s] opinions within the law.” (AU, 1986) This right is also established in the American Convention on Human Rights in Article 13 and is expanded by Article 14. Article 10 of the European Convention on Human Rights consists of two sections, the first echoing the wording of the UDHR and ICCPR, as well.
Most of the above documents enshrine press freedoms alongside and within the general freedom of expression. However, two more recent regional frameworks, the Amsterdam Recommendations and the Bishkek Declaration, work to specifically define and protect press freedoms in the context of ever-evolving manifestations of the media.
The Amsterdam Recommendations refer to press freedoms in light of the digitization of media and espouses that the freedom of expression be upheld regardless of the “...technical means... used to channel the work of journalists to the public…” (OSCE, Jun. 2003) This human rights regime reaffirms previous declarations made by the OSCE, UN, and OAS in 2001, which laid the foundation for ensuring universal, unlimited access to the Internet and digital frameworks. In light of the heightened possibilities afforded by digitization of media, the Amsterdam Recommendations are split into four focus areas: Access, Freedom of Expression, Education, and Professional Journalism.
The Access portion refers to facets of the Internet and its interaction with the freedom of press and expression - this document establishes the Internet as a tool that allows for a “...free media landscape…” to flourish and is thus essential to the public as well as to journalists. (OSCE, Jun. 2003) The Freedom of Expression section acknowledges that the vast degree of usefulness of the Internet allows for increased freedom of expression and access to information, but it is equally susceptible to misuse via criminal exploitation and illicit activity. This section ultimately asserts that freedom to spread and receive information is a basic human right and should be protected from any form of censorship or limitation. Prosecuting and regulating criminal content should therefore only focus on the content itself and not the Internet, which is only a vessel. (OSCE, Jun. 2003) The Education portion refers to fostering computer and Internet literacy, and setting up training tools in schools and for adults so that the role of the Internet is well understood in civil society. (OSCE, Jun. 2003) Finally, the Professional Journalism portion protects private forms of communication as they present a different way of disseminating information than “classic media,” and also maintains that evolving forms of journalism should require the same degree of protection as “classic media.” This section also calls for the creation of a set of standards for journalists to follow, intended to lay out the responsibilities of “professional journalism.” (OSCE, Jun. 2003)
The Bishkek Declaration is more related to protecting press freedoms from infringement by government bodies. Central to this human rights regime is the protection of the media’s right to preserve diversity of linguistic, cultural, and ethnic representation, and prohibits the dissemination of hate speech. The declaration also calls for the protection of the media’s role of holding government institutions and officials accountable to the public in both economic and political contexts. This provision is expanded by the fourth and fifth points, establishing the responsibilities of governments toward this goal - governments must ensure unlimited access to sources of public information for journalists of both state and non-state media apparatuses, and also must resolve any harassment of the press. The document also calls for the decriminalization of libel, allowing for the accountability role of the media to be adequately fulfilled. (OSCE, Sept. 2003)
The aforementioned international and regional human rights regimes act in conjunction with the Amsterdam Recommendations and Bishkek Declaration to define modern press freedoms, and thereby contribute to the preservation of this fundamental democratic value.
References
American Declaration of the Rights and Duties of Man. Basic Documents - American
Declaration. (n.d.).
https://www.cidh.oas.org/basicos/english/basic2.american%20declaration.htm.
Dyer, Andrew. “Freedom of Expression and the Advocacy of Violence: Which Test
Should the European Court of Human Rights Adopt?” Netherlands Quarterly of
Human Rights, vol. 33, no. 1, Mar. 2015, pp. 78–107,
doi:10.1177/016934411503300105.
European Convention on Human Rights. https://www.echr.coe.int/. (n.d.).
https://www.echr.coe.int/documents/convention_eng.pdf.
International Covenant on Civil and Political Rights. OHCHR. (n.d.).
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
PLC, A. M. B. F. T. (n.d.). African Commission on Human and Peoples' Rights. African
Commission on Human and Peoples' Rights Legal instruments.
https://www.achpr.org/legalinstruments/detail?id=49.
Organization of American States. Declaration of Principles on Freedom of Expression.
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=26. 2021.
Organization for Security and Cooperation in Europe, The Representative on Freedom
of the Media, Amsterdam Recommendations. Freedom of the Media and the
Internet. OSCE, Jun. 14, 2003, www.osce.org/files/f/documents/4/a/41903.pdf
Organization for Security and Cooperation in Europe, The Representative on Freedom
of the Media, Fifth Central Asia Media Conference. Media in Multi-Cultural and
Multi-Lingual Societies. OSCE, 2003, www.osce.org/files/f/documents/5/d/42521.pdf
United Nations. (n.d.). Universal Declaration of Human Rights. United Nations.
https://www.un.org/en/about-us/universal-declaration-of-human-rights.
The Constitutional right to a free press is not absolute, and certain exceptions exist for this right as they do for other civil liberties such as free speech and free exercise. A series of landmark decisions dating back to the early Twentieth Century has gradually clarified the limits to freedom of the press, with exceptions for libel, obscenity, and imminent lawless action. Furthermore, the government’s ability to exercise prior restraint (i.e. preventing the publication of certain materials prior to their release) has been severely limited by the courts, but not entirely prohibited. In many instances, holdings for cases that do not specifically concern freedom of the press have been extended to impose new limitations (or privileges) for the press, by virtue of the content in question and the similarities that exist between the press and free speech.
Written material that is found to be libelous or defamatory is not protected by the First Amendment. The threshold for proving defamation can be strenuous, however, and especially difficult for public figures. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court took a major step in limiting the ability of government officials to sue for defamation. Following the publication of an advertisement in the New York Times that criticized the behavior of police officers in Montgomery, Alabama, the Montgomery police commissioner filed suit, alleging that the critical nature of the advertisement constituted defamation. Ruling against Montgomery, the Court asserted that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” are nevertheless protected by the First Amendment. Furthermore, the justices established the Actual Malice test, contending that public officials cannot bring libel cases unless they can prove that a defendant published defamatory material with “reckless disregard” for its accuracy (Justice Brennan, 1964).
The Actual Malice Test was later affirmed in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), in which plaintiff Daniel Connaughton filed a defamation claim against a local newspaper that ran negative articles about his campaign for local office in Hamilton, Ohio. Ruling for Connaughton, the Court affirmed Sullivan while asserting that the publication in question failed to verify its source material while ignoring obvious indications of its falsity (Justice Stevens, 1989). It should be noted, however, that this case represented an affirmation—rather than an extension—of the Sullivan test, as the justices largely limited themselves to criticizing material that displays a “reckless disregard for the truth” in the Connaughton decision. Finally, The Court expanded the Sullivan test to include both public officials and public figures in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Following a libel suit against Hustlers Magazine by conservative commentator and Moral Majority founder Jerry Falwell Sr., the Court extended the Sullivan standard to satirical speech, given the latters’ “prominent role in public and political debate” in spite of inaccuracies that are obvious to the reasonably-minded reader.
The criminalization of obscene material was largely derived from the Hicklin test in English Common Law, a premodern system of judicial decision-making that would later influence legal proceedings in the United States. This is evidenced by the contemporary legal definition of obscenity, which largely centers around speech or actions that are sexually explicit. The Supreme Court never established a firm view on obscenity, however, until its decision in Roth v. United States, 354 U.S. 476 (1957). The Court ruled against Samuel Roth, an author who was charged with violating a federal obscenity statute due to his dissemination of obscene books in public. In light of the sexually explicit nature of the books he sold, the justices asserted that speech that is “utterly without redeeming social importance” is not protected by the First Amendment, which was never meant to give “absolute protection for every utterance” to begin with (Justice Brennan, 1957).
Given the ambiguous interpretation of obscenity in Roth, the Court would later revisit the issue and craft a more succinct definition in Miller v. California, 413 U.S. 15 (1973). California businessman Marvin Miller disseminated explicit content through postal advertisements, and was subsequently arrested and charged under a state obscenity statute. Ruling for California, the Court reaffirmed that the distribution of obscene material without “serious literary, artistic, political, or scientific value” did not violate the Speech or Press Clauses of the First Amendment. In superseding Roth, the justices succeeded in creating a concrete definition for obscene material that can also be employed for issues pertaining to the Press Clause.
Written or spoken words that prompt some form of public disorder are not necessarily protected under American jurisprudence. The current threshold for proving the illegality of this conduct is exceptionally high, however, due to the Imminent Lawless Action test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). Prior to this decision, the Court adhered to the Clear and Present Danger test adopted in Schenck v. United States, 249 U.S. 47 (1919), and the Bad Tendency test adopted in Gitlow v. New York, 268 U.S. 652 (1925). In both cases, the justices took firm positions against the permissibility of views deemed as offensive by the U.S. Government while failing to articulate a test that did not amount to the targeting of certain unpopular viewpoints by the judiciary.
The Court successfully remedied this approach in Brandenburg by overturning the conviction of a Ku Klux Klan member in Hamilton County, Ohio, who was charged under a state criminal syndicalism statute following his incendiary remarks at a Klan rally. Ruling for Brandenburg, the justices asserted that speech or press material can only be criminalized if it is “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action”—a threshold that Brandenburg’s remarks, however incendiary and offensive they were, failed to clear (Per Curiam, 1969). The Imminent Lawless Action test was later affirmed in Hess v. Indiana (1973), in which an antiwar protestor was charged with disorderly conduct after exclaiming “we'll take the [explicative] street later” in response to a crackdown by campus police at Indiana University Bloomington. Ruling for Hess, the Court dismissed the aggressive nature of his comments towards law enforcement officers as “not directed to any person or group in particular,” given that the Brandenburg test required offending language to mention a target, time, or method for prospective activities (Per Curiam, 1973). Despite Hess and Brandenburg directly addressing spoken words rather than written material, it should be noted that each decision applies equally to the Speech and Press Clauses of the First Amendment, thereby making written threats of imminent lawless action and verbal threats equally illegal.
With few exceptions, prior restraint has largely been ruled unconstitutional in several landmark decisions that remain in force today. Prior to New York Times Co. v. United States, 403 U.S. 713 (1971), which is often regarded as the most notable case on this subject, the Court had already denied the constitutionality of prior restraint in Near v. Minnesota, 283 U.S. 697 (1931), in which the justices contended that the societal harms often caused by “miscreant purveyors of scandal” (In this case, a Minnesota Newspaper that regularly engaged in antisemitic commentary in violation of a state public nuisances law) do not provide a compelling reason for government actors to impose prior restraint on the publications in question, especially when no overarching national security implications are relevant to the issue at hand (Justice Hughes, 1931).
In retrospect, the establishment of exceptions for national security issues in Near likely gave hope to the Nixon Administration in its attempt to halt the publication of the Pentagon Papers, which culminated in New York Times Co. v. United States. Ruling for the New York Times, the justices acknowledged the “heavy burden of showing justification for the imposition of [prior restraint]” (Per Curiam, 1971), while arguing that issuing an injunction against various media outlets would represent a “flagrant, indefensible, and continuing violation of the First Amendment (Concurring Opinion by Justices Black and Douglas, 1971).” Following this decision, the imposition of prior restraint was largely relegated to several unique and (relatively) unpublicized issues (see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which allowed prior restraint for information gained in closed-door legal proceedings and for the conduct of a student-run news publication, respectively). Following New York Times, no significant and publicized enactment of prior restraint has earned judicial approval.
References
Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc.
Justia. 2019. “Justia: Free Law & Legal Information for Lawyers, Students, Business and the Public.” https://www.justia.com/
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) https://supreme.justia.com/cases/federal/us/376/254/
Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) https://supreme.justia.com/cases/federal/us/491/657/
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
https://supreme.justia.com/cases/federal/us/485/46/
Roth v. United States, 354 U.S. 476 (1957)
https://supreme.justia.com/cases/federal/us/354/476/
Miller v. California, 413 U.S. 15 (1973)
https://supreme.justia.com/cases/federal/us/413/15/
Brandenburg v. Ohio, 395 U.S. 444 (1969)
https://supreme.justia.com/cases/federal/us/395/444/
Schenck v. United States, 249 U.S. 47 (1919)
https://supreme.justia.com/cases/federal/us/249/47/
Gitlow v. New York, 268 U.S. 652 (1925)
https://supreme.justia.com/cases/federal/us/268/652/
Hess v. Indiana, 414 U.S. 105 (1973)
https://supreme.justia.com/cases/federal/us/414/105/
New York Times Co. v. United States, 403 U.S. 713 (1971)
https://supreme.justia.com/cases/federal/us/403/713/
Near v. Minnesota, 283 U.S. 697 (1931)
https://supreme.justia.com/cases/federal/us/283/697/
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
https://supreme.justia.com/cases/federal/us/467/20/
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
https://supreme.justia.com/cases/federal/us/484/260/
The right to freedom of the press is in 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” (United States of America [[Probable year:: 1789]] (Rev. [[Probable year:: 1992]]) Constitution - Constitute, [[Probable year:: 1992]]) . +
Given the fuzzy line between freedom of speech and freedom of the press (Freedom of Expression, n.d.), restrictions or exceptions towards speech will impact the press and vice versa. With this is mind, there are two main exceptions in the history of United States law to the right of freedom of the press: the Espionage Act of [[Probable year:: 1917]], and the Sedition Act of [[Probable year:: 1918]].
The Espionage Act of [[Probable year:: 1917]] stated that an individual who shares a document or information that “…could be used to the injury of the United States…shall be fined…or imprisoned…” (18 U.S. Code § 793 - Gathering, Transmitting or Losing Defense Information, n.d.). Similar to the Alien and Sedition Acts, the Espionage Act was proposed in the context of war where President Woodrow Wilson himself pleaded for greater restriction to expression and punishment towards individuals that opposed the United States government in his State of the Union address: “Such creatures of passion, disloyalty, and anarchy must be crushed out” (Handout B, n.d.).
The Espionage Act was put to the test in the case Schenck v. United States ([[Probable year:: 1919]]) . Charles Schenck and Elizabeth Baer were convicted for violating the act by distributing leaflets that claimed the draft unconstitutional and was akin to “involuntary servitude” (Schenck v. United States, n.d.). The conviction was upheld by the Supreme Court due to Schenck and Baer’s actions providing a “clear and present danger” which the government has the constitutional ability to block (Asp, n.d.).
A similar decision occurred with Debs v. United States ([[Probable year:: 1919]]) . Eugene V. Debs, a popular socialist politician, was sentenced to ten years in prison for condemning the involvement of the United States in the first World War. Debs claimed protection under the First Amendment, but it was not accepted as Debs’ statements were considered, again, a clear and present danger due to them potentially causing resentment towards the draft (Dow, n.d.).
Many were indicted through the Espionage Act, though as time passed, there was controversy over its small scope and high leniency as the first World War continued its drastic impact on the United States. The case that tipped the balance towards a stronger Espionage Act was an indictment to Ves Hall. Hall was a rancher in rural Montana who expressed plans to desert if he were drafted, that Germany would win the war, and that Woodrow Wilson was a corrupt president (Galison, [[Probable year:: 2010]]) . Hall’s prosecution had broad support from the press and the public. However, Hall was acquitted in the district court as the judge at the time decided that as Hall was in a remote village of 60 people and was miles and miles away from any military presence, and therefore his words did not present any threat to the United States: “…[Hall’s] verbal assault was so distant from its target that there simply was no plausible case to be made for interference with military operations or recruitment” (Ibid.). After Hall’s acquittal, in addition to other acquittals or lenient sentences, desire from American nationalists and supporters from the war increased for an expansion of the Espionage Act to be able to effectively punish and deter disloyalty (Ibid.; Gutfeld, [[Probable year:: 1968]], pg. 169). An amendment was added to the Espionage Act, the Sedition Act of [[Probable year:: 1918]], which rather than merely prohibiting the sharing of a document that could jeopardize American security, instead makes any “disloyal, profane, scurrilous, or abusive language” expressions towards the government, the Constitution, the military, or the flag a federal offense (The Espionage and Sedition Acts, [[Probable year:: 2021]]) .
Eventually, the early 20th century war-era acts were reversed by the [[Probable year:: 1964]] case Brandenburg v. Ohio. In the case, Clarence Brandenburg, a member of the Ku Klux Klan, was having a meeting where he planned a demonstration on Washington, D.C. Brandenburg was convicted to ten years in prison for advocating crime and terrorism (Walker, n.d.). When the case went to the Supreme Court, the Court unanimously decided to overturn Brandenburg’s conviction (Ibid.). The Court stated: “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, [[Probable year:: 1969]]) . As a result, this gave political dissenters a greater ability to express their beliefs despite whatever position towards the United States Government they may have.
Even with Brandenburg’s “imminent lawless action” rule did not completely dissolve the Espionage Act, however. As the Cold War became a more prominent conflict in the 20th century, the Espionage Act was used to justify convictions of American citizens who shared sensitive information about the United States’ research into atomic bombs (DeWitt, [[Probable year:: 2016]], pg. 124). Henceforth, citizens who had access to sensitive information would have their speech limited, in order to protect national security, and it is this interpretation of the Espionage Act which the United States government uses to justify convictions towards “whistleblowers”—Edward Snowden and Chelsea Manning for example—in the present day (DeWitt, [[Probable year:: 2016]], pg. 127; Greenwald, [[Probable year:: 2013]]; Volokh, [[Probable year:: 2018]]) .
Other exceptions to freedom of the press exist. One example is that of obscenity. In [[Probable year:: 1973]], the case Miller v. California, publisher Marvin Miller was prosecuted for mailing advertisements considered obscene (Hudson, n.d.). The Supreme Court acquitted Miller of the charge and established a three-part test—the Miller test— to decide whether an expression is obscene or not: “Whether the average person…would find the work…appeals to the prurient interest,…whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law,…and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Marvin MILLER, Appellant, v. State of CALIFORNIA., [[Probable year:: 1973]]) .
Defamation is another exception, of which the [[Probable year:: 1964]] case New York Times v. Sullivan is an example. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.). The Supreme Court reversed the motions of the previous courts that defended Sullivan and Justice William J. Brennan Jr. Opined for the majority: “[We] consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open…” allowing even for “…vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials” (Hudson Jr, n.d.). With this defense, however, limits could be enforced if the expression is made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (New York Times Co. v. Sullivan, 376 U.S. 254, [[Probable year:: 1964]]) .
Lastly, there is a limit as to what extent the press can protect their reporters’ confidentiality, and this was established in the [[Probable year:: 1972]] case Branzburg v. Hayes (Tom McInnis, n.d.). Reporter Paul Branzburg published a story about drug use and the Black Panthers. Branzburg was asked to testify on the illegal activity and Branzburg refused due to the confidentiality he promised his sources. The Supreme Court decided that, as the information was relevant to a criminal investigation, reporters are obligated to testify on that information (Ibid.). The Court states: “The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege…” (Branzburg v. Hayes, [[Probable year:: 1972]]) .
The right is explicitly stated in the Constitution, though challenges and questions towards it have arisen throughout the United States’ legal history. One of the first such challenges were the Alien and Sedition Acts of 1798, which came about out of an increasing aversion towards disloyalty brought about by fears of France’s potential invasion of the United States (Batten, 2010). Signed by John Adams, the acts allowed for the deportation of immigrants originating from a country that the United States was currently at war with, and, crucially, gave the government the ability to punish those who “…shall write, print, utter or publish…any false, scandalous and malicious writing or writings against the government of the United States…” (Congress, 1845). According to Douglas Bradburn, “The clamor against the Alien and Sedition Acts was broad, important, and deeply consequential”, with Thomas Jefferson leading the backlash (Bradburn, 2008, pg. 567). The political and public reaction to curtailments of the first amendment, including the right to freedom of the press were strongly antagonistic from the beginning.
The 1964 Supreme Court decision in New York Times v. Sullivan further shows the commitment towards this right. The New York Times published an advertisement containing false information about actions taken by opposers of civil rights which included Alabama police, which the Montgomery, Alabama city commissioner, L.B. Sullivan, then responded by filing suit, claiming that the advertisement harmed his reputation and was libelous (Wermiel, n.d.).
Later in 1971 the Supreme Court decided on New York Times Co. V. United States, again in favor of the publication. Sensitive documents about the United States’ involvement in the Vietnam War, named the “Pentagon Papers”, were shared with the publication and the New York Times published it to which the government responded by filing suit, under the justification of prior restraint, a rule that allows the government the ability to review the publication of material and prevent its publication under their discretion (Robertson, n.d.). The Court decided that regardless of the sensitive nature of the documents, the right to free expression and freedom of the press trumped the harm that could be had from the publication of the documents (Ibid.).
Bradburn, D. (2008). A Clamor in the Public Mind: Opposition to the Alien and Sedition Acts. The William and Mary Quarterly, 65(3), 565–600.
Congress, U. S. (1845). Public Acts of the Fifth Congress, Second Session, Chapter 74. In
New York Times v. Sullivan (1964). (n.d.). LII / Legal Information Institute. Retrieved July 7, 2021, from https://www.law.cornell.edu/wex/new_york_times_v_sullivan_(1964)
Robertson, S. (n.d.). New York Times Co. V. United States. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/505/new-york-times-co-v-united-states
Wermiel, S. (n.d.-b). New York Times Co. V. Sullivan. Retrieved July 9, 2021, from https://www.mtsu.edu/first-amendment/article/186/new-york-times-co-v-sullivan
Freedom of the press, and the extent to which it is present, varies widely around the globe. Reporters without Borders is an international non-profit and NGO that maintains a yearly Press Freedom Index that gives some clues on where on the globe freedom of the press is most and least prevalent. This index is the largest of its kind and is frequently used to gauge levels of press freedoms across different countries. The index is based on multiple indicators, including a country’s Constitutional protections, legal precedents, treatment of journalists, and media landscape. The official definition of press freedom used by RWB is “Press freedom is defined as the ability of journalists as individuals and collectives to select, produce, and disseminate news in the public interest independent of political, economic, legal, and social interference and in the absence of threats to their physical and mental safety.” (Reporters without Borders). Europe and the European Union maintain the best freedom of the press found worldwide according to RWB. Norway has topped the Press Freedom Index for the past 2 years for a few reasons. Article 100 of Norway’s constitution allows freedom of expression in Norway (Constitution of the Kingdom of Norway). This was updated in 2006 from the old language which stated, “There shall be freedom of print” to “there shall be freedom of expression” (Rolland, 2010). 200 years ago, when Norway was drafting their Constitution, freedom of the press was essentially freedom of the print, as that was the chief media technology in 1814 (Rolland, 2010). This means that when the technology of the press evolved, they didn’t have the same constitutional protections. This modernization of Norway’s constitution ensures that all forms of the press are protected by Norway’s constitution (Rolland, 2010). The other reasons Norway ranks highly is due to their strong media market with both public and private outlets, and Norway’s leaders safeguarding press freedoms.
The other countries highly rated in the Press Freedom Index include Denmark, Sweden, Netherlands, Finland, Estonia, Portugal, Ireland, Switzerland and Germany. The non-European countries that are highly rated include Canada, New Zealand, Timor-Leste, Samoa, and Jamaica. To give some examples, Denmark’s constitution states “Any person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice. Censorship and other preventative measures shall never again be introduced.” (The Constitutional Act of Denmark §77). Sweden’s constitution contains The Freedom of the Press Act, which states “Freedom of the press means the freedom for everyone to express their thoughts, opinions and sentiments in print, and to publish official documents and in general communicate information on any subject whatsoever” (The Freedom of the Press Act (1949:105)). The Freedom of the Press Act was originally passed in 1766, making it the world’s first law protecting freedom of the press (Weibull, 2014). It was created after decades of censorship by Swedish monarchs and has been amended in 1810 and 1812 to abolish censorship of academic and theological publications and to affirm the principles of editorial responsibility. (Weibull, 2014). The Canadian constitution contains the Canadian Charter of Rights and Freedoms, which allows for “freedom of the press and other media of communication” (Canadian Charter of Rights and Freedoms).
Countries that have high levels of press freedom have many features in common that make them secure for journalists. The Press Freedom Index analyzes five contextual indicators that are used to gauge press freedom. First off, countries with high levels of press freedom have a solid legal framework protecting freedom of the press. This includes constitutions, as well as the ability of the press to access information without discrimination. The next category is political context, which is a states current level of acceptance of journalism, a states support of journalism, and the role of the press in keeping accountability in government. To use Norway as an example, Norwegian politicians are supportive of the country’s media landscape, rather than the United States, where many politicians call the media into doubt. Economic context is also considered, which is mainly the economic constraints a state may place on the press. Sociocultural contexts can impede the press’s ability to report information on issues like gender and religion. Lastly, the safety of the press is questioned. This includes safety from physical harm, psychological harm, and professional harm (such as a journalist having their equipment confiscated). This gives an idea about what freedom of the press looks like in the countries that do their best to uphold it. Journalists are protected by the law and can investigate and scrutinize the state. The politicians in charge of the country uphold press freedom and do not interfere unjustly. The state doesn’t impose unjust economic constraints on media outlets, and journalists are safe in their line of work.
This brings me to the original question, “Is [freedom of the press] protected in the constitutions of most countries today?”. I must answer that yes, it is technically protected in the constitutions of most countries today. With the exception of Eritrea and Afghanistan, which both don’t have a constitution in effect, every other country ranked lowest in the Press Freedom Index had freedom of expression/press given to the citizens in their constitution. The countries ranked highest in the Press Freedom Index have freedom of expression/press given to the citizens in their constitution or supporting constitutional documents, like the U.S. Bill of Rights and Canadian Charter of Rights and Freedoms. This leads me to believe that it must be up to a country’s leadership to protect the laws these countries have written. Syria and North Korea both give their citizens freedom of the press and freedom of expression, but the regimes in power there penalize those who try to use that right. This is an interesting paradox that exists in the constitutions of both democratic and autocratic nations.
“Chapter V: Fundamental Rights and Duties of Citizens,” Socialist Constitution of the Democratic Peoples Republic of Korea, 2019. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzkp0009&collection=cow
Justice Laws Website. “Canadian Charter of Rights and Freedoms.” Canada, 1982. https://laws-lois.justice.gc.ca/eng/const/page-12.html.
National Archives. “The Bill of Rights: A Transcription,” November 4, 2015. https://www.archives.gov/founding-docs/bill-of-rights-transcript.
“Part 1: Rights and Freedoms.” English Translation of the Syrian Constitution Modifications, 2012. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzsy0011&collection=cow
Reporters without Borders. “Press Freedom Index,” 2024. https://rsf.org/en/index.
Reporters without Borders. “Methodology used for compiling the World Press Freedom Index 2024,” 2024 https://rsf.org/en/methodology-used-compiling-world-press-freedom-index-2024?year=2024&data_type=general
Rolland, Asle. “Modernising Freedom of Speech: The Case of Article 100 of the Norwegian Constitution.” Policy Studies 31, no. 3 (May 2010): 331–50. https://doi.org/10.1080/01442871003616008.
“Section E: Human Rights,” Constitution of the Kingdom of Norway, 2023. https://heinonline-org.proxy.lib.miamioh.edu/HOL/Page?handle=hein.cow/zzno0102&collection=cow
“The Constitution,” April 3, 2023. https://www.riksdagen.se/en/how-the-riksdag-works/democracy/the-constitution/.
The Danish Parliament. “The Constitutional Act,” February 19, 2024. https://www.thedanishparliament.dk/en/democracy/the-constitutional-act.
United States Department of State. “2023 Country Reports on Human Rights Practices.” https://www.state.gov/reports/2023-country-reports-on-human-rights-practices/.
Weibull, Lennart. “Freedom of the Press Act of 1766.” Britannica, 2014. https://www.britannica.com/topic/Freedom-of-the-Press-Act-of-1766.
Freedom of the Press/Philosophical Origins/Tradition contributions/Continental Philosophy/Frankfurt School +
The scholars of the Frankfurt School wrote much more on the mass culture and its effects on the public sphere rather than the freedom of the press. However, they believed that the press was an instrument by which citizens are informed and pushed to think critically, thus make decisions, and should remain so. Some of these scholars lived to witness how the Nazis employed mass culture to instill subordination to fascist culture and society. While in exile in the United States, members of the Frankfurt school came to believe that American ‘popular culture’ was similarly ideological, and that it worked to promote American capitalism's interests. In Dialectic of Enlightenment ([[Probable year:: 1944]]) , Theodor Adorno and Max Horkheimer, provided a trenchant critique of modern culture, establishing the term ‘culture industry’ to describe mass cultural forms that, in the wake of capitalism, transform the individual from an active thinking individual into an unthinking, passive consumer. Similarly, in [[Probable year:: 1962]], Jürgen Habermas published Structural Transformation of The Public Sphere an Inquiry Into A Category Of Bourgeois Society, his critical investigation and analysis of the public sphere in civil society.
Jurgen Habermas expanded on Adorno and Horkheimer's ‘culture industry’ analysis. In providing historical context for the culture industry's triumph, Habermas emphasized how bourgeois society in the late 18th and 19th centuries was marked by the emergence of a “[public] sphere between civil society and the state, in which critical public discussion of matters of general interest was institutionally guaranteed”, and which mediated between public and private interests (Habermas, [[Probable year:: 1989]], p.11). Individuals and groups could finally shape public opinion, giving direct expression to their needs and interests while influencing political practice. The bourgeois public sphere made it possible to form a realm of public opinion that opposed state power and the powerful interests that were coming to shape bourgeois society.
Habermas was fascinated by the transition from opinion to public opinion, as well as the latter’s socio-structural change. The rise of the mass press, according to him, was founded on the commercialization of the people’s engagement in the public sphere. As a result, much of the original political nature of this ‘extended public sphere’ was lost in favor of commercialism and entertainment (Habermas, [[Probable year:: 1989]], p. 169). This trend may be seen in the press, which is the most important entity of the public sphere: Habermas diagnoses the merging of the formerly distinct domains of journalism and literature, as well as a blurring produced by the mass media’s response to the rise of a consumerist culture. He argued that “Editorial opinions recede behind information from press agencies and reports from correspondents; critical debate disappears behind the veil of internal decisions concerning the selection and presentation of the material.” (Habermas, [[Probable year:: 1989]], p.169)
The introduction of electronic mass media into the public sphere exacerbated the situation. The news is made to resemble a story from its own structure down to stylistic detail, thus the boundary between truth and fiction is increasingly being discarded (Habermas, [[Probable year:: 1989]], p.170). However, while they have a greater influence than print media, their format effectively limits interaction and deprives the public of the opportunity to disagree and think critically, leading Habermas to the conclusion that “The world fashioned by the mass media is a public sphere in appearance only”, at the same time “the integrity of the private sphere which they promise to their consumers is also an illusion.” (Habermas, [[Probable year:: 1989]], p.171). Adorno and Horkheimer agree with Habermas on this point, for them, “Movies and radio need no longer pretend to be art. The truth that they are just business is made into an ideology in order to justify the rubbish they deliberately produce” (Dialectic of Enlightenment, [[Probable year:: 1944]], p.121, para.1)
Habermas notes the contradiction between “the liberal public sphere’s constitutive catalogue of ‘basic rights of man’ and their de facto restriction to a certain class of men” (Habermas, [[Probable year:: 1989]], p.11). The public sphere's character is becoming progressively limited; the media serve as tools of establishing and controlling consensus and promoting capitalist culture rather than fulfilling their original purpose as organs of public discussion. In favor of a staged performance, publicity loses its critical role, ideas are transmuted into symbols to which one cannot react by debating but only by identifying with. Unlike the coffee houses, Habermas pointed, “[they] were considered seedbeds of political unrest: Men have assumed to themselves a liberty […] to censure and defame the proceedings of the State” (Habermas, [[Probable year:: 1989]], p.59). Throughout Structural Transformation, Habermas maintained that the mass media have evolved into monopolistic capitalist institutions. Their role in public debate has evolved from disseminating trustworthy information to shaping public opinion. To counter these developments and as a condition for a pluralist democratic debate in an open society that is not entirely dominated by the mass media. Habermas emphasized the importance of a vital and functioning public sphere, a sphere of critical publicity distinct from the state and the economy, consisting of a broad range of organizations that represent public opinion and interest groups.
From this, it is obvious that Habermas, Horkheimer and Adorno advocated for freedom of the press and freedom of speech, a press that is free from the monopolistic capitalist corporations and the influence of the state. One that informed citizens and left them to criticize freely. Habermas argued that “the press was systematically made to serve the interests of the state administration” (Habermas, [[Probable year:: 1989]], p.22). At the same time, Habermas also argued that the elimination of censorship in England in the years of [[Probable year:: 1694]] and [[Probable year:: 1695]], gave some liberty to the press, even by a slight margin. “The elimination of the institution of censorship marked a new stage in the development of the public sphere” He stated, “It made the influx of rational-critical arguments into the press possible and allowed the latter to evolve into an instrument with whose aid political decisions could be brought before the new forum of the public” (Habermas, [[Probable year:: 1989]], p.58). In Between Facts and Norms, Habermas stated clearly and explicitly that “Freedom of the press, radio, and television, as well as the right to engage in these areas, safeguards the media infrastructure of public communication; such liberties are thereby supposed to preserve an openness for competing opinions and a representative diversity of voices.” (Habermas, [[Probable year:: 1996]], p.368, line.9)
Nevertheless, in comparison to the emerging media of the twentieth century, like film, radio, and television, the degree of economic concentration and technological coordination in the newspaper business appeared to be modest. Indeed, the funds for the media of the twentieth century appeared to be massive, and their propagandist power so intimidating, that in certain countries, capitalist or not, the development of these media was controlled by the government from the outset.
References:
Adorno, T. W., & Horkheimer, M. ([[Probable year:: 1944]]) . Dialectic of enlightenment . Verso.
Habermas, J. ([[Probable year:: 1989]]) . The structural transformation of the public Sphere an inquiry into a category of bourgeois society. MIT Press.
Habermas, J. ([[Probable year:: 1996]]) . Between facts and norms: *contributions to a discourse theory of law and democracy. MIT Press.
Freedom of the press is an issue proving to be more relevant in the modern era as the media influences the public and changes the way people make decisions within their life. It is for this reason that feminist theorists have briefly addressed this right as they recognize the power the press has for the feminist movement and the advancement of women's rights legally and socially. The notion of freedom of press is addressed by Betty Friedan and briefly Martha Nussbaum to explain the role the media plays when it comes to women achieving their rights and equality within society. When it comes to certain rights like freedom of press, the feminists are somewhat unclear about their stance on the issue although inferences can be made based on the implicit arguments made throughout their works.
The notion of freedom of press is interesting according to the feminist perspective because of the unclear answer they have on whether this right should exist within society. Specifically, when talking about the press, Friedan noticed that “At the first press conferences after the law went into effect, the administrator in charge of enforcing it joked about the ban on sex discrimination. ‘It will give men equal opportunity to be Playboy bunnies,’ he said” (Friedan [[Probable year:: 1973]], 368). Friedan points out the problems with the media and journalism in the country to help demonstrate the power men have in most institutions in America. She notes that journalism within a nation is important and should be allowed to do as they please so long as they put the right information forward. Despite being her expectation for the media, her example of how journalism is conducted shows that society’s intention is not towards the female empowerment agenda and therefore makes it hard to make a clear statement on freedom of the press. Like the other institutions Friedan discusses, the press is riddled with oppressive people who again will not use their power to help women. As Friedan notes above, the media had the chance to help encourage the ban on sex discrimination, but instead made a joke out of it and therefore discrediting the ban that could help enforce legal equality for women. Had the media approved of the ban, then it would have been received batter by society and may have even helped create more support for women and their efforts towards equality. Furthermore, Friedan notes “In Washington I found a seething underground of women in the government, the press, and the labor unions who felt powerless to stop the sabotage of this law that was supposed to break through the sex discrimination that pervaded every industry and profession, every factory, school, and office. Some of these women felt that I, as a now known writer, could get the public’s ear” (Friedan [[Probable year:: 1973]], 369). Friedan notes the blatant discrimination women face in the government and the way that they are given the low jobs that are necessary for society to work the way it does, but she also notices that these women wish to be given the proper recognition they deserve. It is for this reason that Friedan would claim that there should be a freedom of press that conveys the right and appropriate message to the public about the state that women are in. It is this underground network of women in government that get cast aside by the men in society and Friedan believes that it should be the press to rediscover and report on the work that these women do in every single organization. Friedan recognizes the power the press must tell the stories of these women and their efforts to help society while not being given the recognition they deserve. Friedan believes that if the press can report about the discrimination and the problems women face and therefore challenge society into changing their views on women, then maybe there will be a possibility for change.
It is from the brief descriptions of instances from which one can derive an answer about whether freedom of press should exist within society. Friedan writes noticeably that “In fact, the media’s, political muckrakers’, and even feminists’ obsession with such charges, which originated as an expression of women’s new empowerment, now begins to seem almost diversionary” (Friedan [[Probable year:: 1973]], 7). On the other end of her discussion of the media is the harm that the media can cause for women if it does not stay on the message that is trying to be conveyed. She notes that media and the press today might distract the public from the true message at hand and pull away from achieving social justice because society might focus on the details that are not that important or necessary. In other words, she understands that people contort the facts to achieve their own intentions which might also cause problems because again it takes away from the goals and the intentions of reporting about women’s issues. In addition, speaking to rights in general, Nussbaum notes that “Thinking of this problem, then, we can insist that universal norms of religious toleration, freedom of association, and the other liberties are essential in order to prevent illiberal subgroups from threatening legitimate forms of pluralism” (Nussbaum [[Probable year:: 2000]], 52). Although the freedom of press is not specifically referenced by Nussbaum, it still follows the idea that feminist theorists follow the other liberties enshrined in society leaving the space for the possibility of freedom of press despite the unclear conclusion from the feminist perspective. Specifically, it is Nussbaum’s support of pluralism that supports the notion of freedom of press since allowing people to share and report on what they like adds to the notion of being plural with one’s opinions and what they share. To the feminist perspective, any right or liberty exists, it is just about how the right or liberty is used and encouraged to either help women or reinforce the patriarchy.
What is most interesting about the feminist political theory is the way that the rights people have only retain as much importance as society has assigned to it. In other words. Feminist theorists are not so much in political commentary, despite criticizing it, but have interests in the way society functions and therefore equate societal institutions and political ones. When it came to freedom of the press, then if it was mentioned, it was in terms of the way society has implemented it and how it affects women of the modern era and therefore why there is no explicit conclusion made about freedom of the press.
References:
Friedan, Betty. The Feminine Mystique. Dell Publishing Company INC. [[Probable year:: 1973]]
Nussbaum, Martha C. [[Probable year:: 2000]]. Women and Human Development: The Capabilities Approach. Cambridge University Press
In his seminal essay Answering the Question: What is Enlightenment?, Kant states that enlightenment is when an individual attains the “spirit of rational respect for personal value and for the duty of all men to think for themselves” (Kant, [[Probable year:: 1991]], p. 55). To be enlightened is to no longer believe things because that is what the authority prescribes, rather one is to find the truth by oneself. The final element to achieve enlightenment for Kant is using reason freely with others: “For enlightenment of this kind, all that is needed is freedom[,]…freedom to make public use of one’s reason in all matters” (Ibid.). One’s personal enlightenment is dependent upon the willingness with which the individual shares his judgements with others. Gert Van Eekert in his explanation on Kant’s view of free expression states: “…enlightenment implies that one not only must have the courage, but also must enjoy the freedom to submit one’s opinions to the critique of all others…Intellectual independence of freedom of thought cannot exist without the freedom to think in community with others, and hence without the freedom to speak and write without constraints” (Van Eekert, [[Probable year:: 2017]], p. 132).
It is along these lines that insights towards the right to freedom of the press can readily be made. A free press is a tool which allows for an individual’s own enlightenment, and this occurs through the criticism one opens oneself by publishing a piece of writing, as well as the opportunity to critique the writings and ideas that others make. The effects of a free press is then the enlightenment of society which Kant believes necessarily results from the opening of freedom: “The public use of man’s reason must always be free, and it alone can bring about enlightenment among men,” (Kant, [[Probable year:: 1991]], p. 55).
Interestingly for Kant, a free press is beneficially for a leader because it contains criticisms of them. In his essay On the Common Saying: 'This May Be True in Theory, But It Does Not Apply in Practice' , Kant describes the good ruler has his subjects suffer only by mistake and ignorance, and therefore it is the subject’s duty to express his opinion of the ruler’s actions that way the ruler can correct it. Because of this duty, Kant states: “Thus freedom of the pen is the only safeguard of the rights of the people,” with the caveat of: “although it must not transcend the bounds of respect and devotion toward the existing constitution, which should itself create a liberal attitude of mind among the subjects” (Kant, [[Probable year:: 1991]], p. 85). Kant therefore has a certain idealism as to the interaction between ruler and subject with the freedom of the press. The relationship certainly is a critical one where the subject criticizes the ruler’s actions, though the relationship is not antagonistic. The liberal ruler agrees with the values of the liberal subject, and the ruler uses the subject’s input to rule in a just way. Reciprocally, the subject also has the duty to follow the laws that the ruler bestows: “In every commonwealth, there must be obedience to a generally valid coercive laws within the mechanism of the political constitution” (Ibid., pg. 85).
References:
Kant: Political Writings (ed. Reiss)
Geert Van Eekert, "Freedom of Speech, Freedom of Self-Expression, and Kant’s Public Use of Reason," Diametros 54 (2017): 118–137 doi: 10.13153/diam.54.2017.1136
John Stuart Mill’s work of On Liberty ([[Probable year:: 1859]]) argues against government forcing ideas on the public and argues for the liberty of the press. This would allow for the free reign of ideas and knowledge in society without coercion from the public or their government. This argument allows for inclusion and argues against the censorship of any idea or opinion, no matter the stance or status of the individual. This argument would say that if the power of coercion is exercised, the government or institution is illegitimate and the only way a government can be legitimate is through granting the liberty of the press and of speech.
“The time, it is to be hoped, is gone by, when any defense would be necessary of the ‘liberty of the press’ as one of the securities against corrupt of tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in [the] interests with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear… the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public…Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves, or by their government. The power itself is illegitimate.” (Mill, On Liberty, chapter 2 pp. 20-21).
Mill’s argument is that coercion is the source of illegitimate government and liberty of the press and speech allow for the free flow of opinions, ideas and knowledge that is the basis for political legitimacy. Government interference in this free flow is how government institutions stray from the public and cause illegitimacy. Mill argues for the freedom of the press and has this be the basis for political expression in legitimate governments.
Mill argues that the suppression of opinions by any person is to assume that this person has absolute certainty. This idea robs other humans from forming their own opinions about the first idea and if this suppression takes place, it says that the original idea is false because one person said so, not because the majority of people believe so. This act of suppression robs people of the right to form their own opinion and prevents majority opinions from being formed. Liberty, is then impossible because of this suppression of ideas, making freedom of the press vital to utilitarian ideals and public opinion in general (Mill, On Liberty, chapter 2 pp. 22-24).
References:
Mill, John Stuart. On Liberty and Other Essays. [[Probable year:: 1859]]. Oxford World’s Classics, edited with introduction and notes by John Gray, [[Probable year:: 1991]], pp. 20-24.
With the various applications of postmodernism--architectural, aesthetic, literary, and many others—central to its (varied) perspective on the right to freedom of the press is its philosophical and theoretical insistence on, as Jean-Francois Lyotard stated in The Postmodern Condition, the “incredulity toward metanarratives” (Lyotard, [[Probable year:: 1984]], p. xxiv). Such metanarratives are complete explanations of ourselves and reality which were historically offered by religions, the sciences, and politics (Woods, [[Probable year:: 1999]], p. 20). Examples include the insistence of the Enlightenment that reason would carry humanity towards greater progress, or Marxism’s analysis that material conditions of people is the driver of historical events. The postmodernist rejects all-encompassing narratives because of the realization that all knowledge is severely limited by the inheritance and context of the individual. The “whole story” is inaccessible to the individual who creates a metanarrative. In his short essay Answering the Question: What is Postmodernism?, Lyotard concludes: “The answer is: Let us wage a war on totality; let us be witnesses to the unpresentable; let us activate the differences and save the honor of the name” (Lyotard, [[Probable year:: 1984]], p. 82). By “the unpresentable”, Lyotard means an expression or subject that is not accounted for under the metanarrative that is currently accepted. Along with the rejection of metanarratives, so too are any objective truth claims thrown out as the assumption that reality can be understood is its own limited, contingent narrative. With these metanarratives out of the way, all that is left are local, micronarratives and, important to the postmodernist, are the micronarratives which explicitly contradict the metanarratives that are accepted.
With this analysis, postmodernism gives two main insights towards the right to freedom of the press—one flattering or supportive to the right, the other critical and deconstructive. The first, supportive, insight is that the right to freedom of the press allows for the dissemination of countless micro or small narratives. The right actively prevents the “violent and tyrannical” metanarratives from imposing their “false universality” (Woods, [[Probable year:: 1999]], p. 21) onto the margins that do not have the same confirming experience. A free press entirely attacks the self-legitimation which these narratives perpetrate.
The second, more cynical insight is that the right to freedom of the press is at least an important mechanism for a metanarrative and at most a metanarrative itself. In Zühtü Arslan’s account of postmodernism’s interpretation of human rights, he claims: “[T]he most important feature of the postmodern discourse which makes impossible a friendly relationship with human rights is its hostility to the concept of the autonomous subject and to the idea of universality” (Arslan, [[Probable year:: 1999]], p. 196). The human subject, with his autonomy and moral importance, is one that was constructed by the contexts and contingencies of the modernists that theorized him. With this, the universalization of this right fails before it even began. Moreover, any attempt by a government to establish such a right, as well as argue for its existence, is merely an attempt at self-legitimization of its own power. The right to freedom of the press is then, counter to the first insight stated above, an attempt to defend the metanarrative already established.
In the end, postmodernism gives two contradictory insights on the right to freedom of the press. One in which the freedom of the press is a tool for the micronarratives of the marginalized to express their points of view which contrast the tyrannical meta narrative, and the other in which the freedom of the press merely another expression of the dominant metanarrative already assumed and taken for granted.
References:
Arslan, Zuhtu. “Taking Rights Less Seriously: Postmodernism and Human Rights.” Res publica (Liverpool, England) 5, no. 2 (1999): 195–.
Lyotard, Jean-François, Geoffrey Bennington, and Brian Massumi. The Postmodern Condition : a Report on Knowledge. Translated by Geoffrey Bennington and Brian Massumi. Minneapolis: University of Minnesota Press, 1984.
Woods, Tim. Beginning Postmodernism. Manchester: Manchester University Press, 1999.
Defined broadly, pragmatism is an American philosophical tradition which posits that the truth value of a statement or belief is dependent on its “successful practical consequences” (Talisse, [[Probable year:: 2008]], p. 61). What makes a belief true is not how clearly or equally the belief maps onto reality, rather it is comparing the expected consequences that a belief will give us, and then comparing that expectation with what actually occurs. If the expectation and outcome are the same, that belief is considered to be true.
John Dewey was the pragmatist philosopher who dealt with politics in the most systematic way. Dewey saw democracy as a way of life and the moral ideal for human beings which led to the good life (Talisse, [[Probable year:: 2014]]) . Dewey states: “[D]emocracy is not an alternative to other principles of associated life. It is the idea of community of community life itself” (Dewey, [[Probable year:: 1973]], p. 623). What works for the community is kept and what does not work is changed and adapted, and this dialectic never concludes: “[T]his translation is never finished. The old Adam, the unregenerate element in human nature persists” (Dewey, [[Probable year:: 1973]], p. 627). It’s only through communication between the members of society that this “old Adam” is challenged—a communication where “shared interest in the consequences of interdependent activities may inform desire and effort and thereby direct action” (Ibid.). The result is a society which addresses all issues and problems of human life, including all virtues. Talisse describes this as perfectionism: “Perfectionists hold that it is the job of the state to cultivate among citizens the dispositions, habits, and virtues requisite to human flourishing”, later stating: “the perfectionist project is a task for all modes of human association” (Talisse, [[Probable year:: 2014]]) .
The right to freedom of the press fits clearly into Deweyan democracy, both because of its inherent sociality, as well as its nature of reasoning or problem solving. The right allows for the issues of the society to be freely expressed and then debated by citizens amongst themselves in a nationwide. This free discourse then determines which particular elements of the society should be taken out, adapted or kept, thus allowing for a constant improvement. Moreover, the expression found in a free press is what specifically allows for the criticisms and improvements of societies to be noticed and realized in the first place: “There can be no public without full publicity in respect to all consequences which concern it…Without freedom of expression, not even methods of social inquiry can be developed” (Dewey, [[Probable year:: 1973]], p. 633-634).
Pragmatist Richard Rorty similarly defended democracy, and by extension the free, though he does so for radically different reasons. In fact, Rorty believed that an attempt to justify democracy and its accompanying rights was a distraction. Democracy and rights are experiments. Particular hypotheses we have towards how we will act and expected consequences that come therefrom: “If the experiment fails, our descendants may learn something important. But they will not learn a philosophical truth, any more than they will learn a religious one. They will simply get some hints about what to watch out for when setting up their next experiment” (Rorty, [[Probable year:: 1992]], p. 270).
References:
Dewey, John, John J. McDermott, and John J. (John Joseph) McDermott. The Philosophy of John Dewey. New York: Putnam Sons, 1973.
Rorty, Richard. “THE PRIORITY OF DEMOCRACY TO PHILOSOPHY.” In Prospects for a Common Morality, edited by GENE OUTKA and JOHN P. REEDER, 254–78. Princeton University Press, 1993. http://www.jstor.org/stable/j.ctt7sfw3.15.
Talisse, Robert B., and Scott F. Aikin. Pragmatism : a Guide for the Perplexed. London ;: Continuum, 2008.
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Freedom of the press long been shaped by state actors that often in times of emergency see individual rights as second to state interests. Emergency situations such as war, natural disaster and disease typically has allowed governments to restrict this right on the basis of emergency, national security, or fear. Though this restriction can vary on duration, emergency event, country and government type, restrictions of the freedom of the press in emergency situations has a precedent.
In the United States context, in times of war there has been legislation passed to restrict public discourse with government on the basis of national security. The Alien and Sedition Acts of 1798, passed as the United States prepared for war against France, restricted speech and press critical to government which allowed for the Federalist held government under John Adams to weaken the Republican party’s effect in politics. Under this act, politicians, editors, and writers were arrested and given jail time because of their publishing against the United States government (Stone, pg. 1663). During the Civil War, President Lincoln suspended the writ of habeus corpus and allowed military officials to enact martial law. This allowed for over 300 newspapers to be shut down for publications that were sympathetic to the confederacy.
President Wilson, during World War I, enacted the Espionage Act of 1917 and the Sedition Act of 1918 which stifled those who opposed his policies during wartime. “In effect, these two laws made it unlawful for any person to write or publish any statement that criticized the President, the Congress, the government, the Constitution, the war, the draft, the military, or the uniform of the military of the United States.” (Stone, pg. 1666). These two acts essentially brought back the Alien and Seditions Acts of 1798 which restricted publications opposing government during times of war. During World War I the United States government prosecuted nearly 2000 people under these acts and essentially suspended the freedom of the press concerning government accountability, opposing government, and questioning policy (Stone, pg. 1666).
By the time the Vietnam War came, a significant switch in opinion came concerning the freedom of the press during times of war. Mass protests, newspaper publications, news outlets, and other forms of press opposing the Vietnam War were condoned and even backed by judicial case. The publishing of the Pentagon Papers was backed by Supreme Court decision where the court ruled that the national security threat was not clear, or grave enough to restrict the first amendment right of free press. (Stone, pg. 1668). This stance has remained as opposition publications concerning the Korean War and occupation of Iraq have not been restricted and the freedom of the press has not seen any significant restrictions during wartime on the basis of national security in the more modern (post-World War II) context.
With respect to the COVID-19 pandemic, there have been numerous international examples of the restriction of the freedom of the press. Jordan has strengthened the censorship program present, allowing all publications to be subject to censorship concerning the pandemic. Israel has enhanced surveillance on journalists because of the COVID-19 pandemic and the effects publications can have in causing fear. In Hungary, new punishments allowing for the imprisonment of members of the press for publishing anything the government deems to be false information on the basis of starting public panic. Many countries like Greece, Japan, and Ukraine have imposed new laws allowing government to restrict what the media can do and have access to concerning public health. In Cambodia and Vanuatu, legislation has been passed that puts in place a censorship program on the basis of emergency to prevent unrest and fear. These laws prohibit publishing without government approval essentially allowing for government censorship of publications concerning the COVID-19 pandemic. Countries such as Russia, Kyrgyzstan, South Africa, Indonesia, Botswana, Algeria, and Zimbabwe have placed prison sentences as deterrents for journalists and news outlets for publishing anything the government deems untrue or could spark fear. In Liberia, Romania and Myanmar, the government has closed down news sites for publishing information that the government has deemed untrue. These were mainly ethnic minority sites (Selva 2020).
A study published in 2018 by Kodai Kusano and Markus Kemmelmeier looked into the effect natural disasters have on socio-political rights and the freedom of the press, among other things. They concluded that natural disasters cannot predict the level of freedom of the press as other economic factors have a stronger causal relationship. There was no support for their hypothesis that natural disasters will lead to lower levels of socio-political freedoms and freedom of the press (Kusano and Kemmelmeier, 2018).
It is nearly impossible to define limitations of free speech because of a given emergency as each example varies on a number of different aspects concerning, regime type, government stability, economic factors, and emergency type. Though typically when it comes down to granting the freedom of the press or regime stability, regime stability will prevail, and freedom of the press will be restricted.
References:
Geoffrey R. Stone, "Freedom of the Press in Time of War," 59 SMU Law Review 1663 (2006).
Kusano K and Kemmelmeier M (2018) Ecology of Freedom: Competitive Tests of the Role of Pathogens, Climate, and Natural Disasters in the Development of Socio-Political Freedom. Front. Psychol. 9:954. doi: 10.3389/fpsyg.2018.00954
Selva, Meera. “Healing Words: How Press Freedom Is Being Threatened by the Coronavirus Pandemic.” Reuters Institute for the Study of Journalism, University of Oxford, 7 Apr. 2020, reutersinstitute.politics.ox.ac.uk/risj-review/healing-words-how-press-freedom-being-threatened-coronavirus-pandemic.
An example of why freedom of the press may appear threatening to those in power is because of the speed at which information moves, and the way it can shape critical events, like elections. Oftentimes it may seem like the news outlets have a bias, for example, “cable organizations are labeled as liberal or conservative instead of just news. Information flows on social media and Internet sites at lightning-fast speed with no way to verify accuracy” (Wermiel, 2019).
In 1798, Congress passed the Sedition Act which allowed for people to be prosecuted when they “brought the president of the government into disrepute and ridicule” (Wermiel, 2019). So, freedom of the press can also appear to be threatening because it allows people to voice their concerns about the decisions of the US government. However, government officials may pass laws to ensure this doesn’t happen. This act was created because President Wilson and Congress wanted to eliminate people speaking out about their opposition to the involvement of the United States in the war (This Day in History).
Freedom of the press may be perceived as threatening to government authorities when the media is able to uncover the wrongdoings or abuse of the government because it could prevent citizens from fully trusting the government in its ability to do things in the best interest of its citizens. For example, “Watergate” is “synonymous with political crime and corruption” (Watergate). President Nixon was not a big fan of freedom of the press; according to William Robinson, who worked for the New York Herald Tribune, he believed that it was a “handy refuge for subtle as well as overt character assassination” (Farell, 2014).
However, even if some people in government positions may view freedom of the press as threatening, the Supreme Court has upheld the press’ right to report on anything they deem important. For example, in the Supreme Court case New York Times Company v Sullivan, the “actual malice” test was created, which requires that a public figure demonstrates that someone knew the information they were reporting was false, but proceeded to use it anyway (Oyez). So, while news outlets can post whatever they want, they run the risk of being sued for libel (the publication of false information).
In order to cover up anything that government authorities may not want known, they have “made explicit attempts to silence critical media voices and strengthen outlets that serve up favorable coverage” (Repucci, 2019). It may appear that some government officials want to be seen in a positive light, and they could attempt to remove any media that depicts them in a way that’s different from that.
Wermiel, Stephen. 2019. “Freedom of the Press: Challenges to This Pillar of Democracy.” www.americanbar.org. March 26, 2019.
https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-19/insights-vol-19-issue-2/freedom-of-the-press/.
History.com Editors. 2019. “U.S. Congress Passes Sedition Act.” HISTORY. July 29, 2019. https://www.history.com/this-day-in-history/u-s-congress-passes-sedition-act.
FBI. “Watergate.” Federal Bureau of Investigation. https://www.fbi.gov/history/famous-cases/watergate.
Farrell, John Aloysius. 2014. “When Nixon Met the Press.” POLITICO Magazine. https://www.politico.com/magazine/story/2014/08/nixon-and-the-media-109773/.
Oyez. 2018. “New York Times Company v. Sullivan.” Oyez. 2018. https://www.oyez.org/cases/1963/39.
Repucci, Sarah. 2019. “Media Freedom: A Downward Spiral.” Freedomhouse.org. Freedom House. 2019. https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral.
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“Privacy claims began gradually to be made independently of the trespass rules essential to property rights” (Heffernan, [[Probable year:: 2016]], 102). The connection between these rights was recognized early on by Hixon (“the right to privacy…carried at least an implied right of property”) from Warren & Brandeis’s [[Probable year:: 1890]] writing and by New York Court of Appeals judge John C. Grey (Hixon, [[Probable year:: 1987]], 39). These rights are protected and exercised jointly in many constitutions and states, likely as privacy rights’ origins are rooted in property rights (Heffernan, [[Probable year:: 2016]], 113). For instance, in Grenada Article 1(c) of the [[Probable year:: 1973]] constitution protects both privacy and property (Constitute Project, Grenada [[Probable year:: 1973]], reinst. [[Probable year:: 1991]], rev. [[Probable year:: 1992]]) . Without the right to privacy, property rights would be lessened as it would only grant the right to ownership and, barring other protections, leave the property vulnerable to searches that may expose private information. When exercised in conjunction with property rights, privacy protections expand. This is explicit in the constitution of Saint Kitts and Nevis, which, in granting privacy rights, also prevents the deprivation of property without compensation (Constitute Project, Saint Kitts and Nevis [[Probable year:: 1983]]) .
The right to privacy also convenes with the right to be forgotten in some states. This right is “the right of a past individual to be forgotten by people in the present” (Gadja, [[Probable year:: 2018]], 205). The European Court of Justice (ECJ) ruled in [[Probable year:: 2014]] that the right to privacy granted in Europe extended to past economic troubles and that this lack of privacy that caused the lawsuit was harming his ability to move past these troubles (Gadja, [[Probable year:: 2018]], abstract). This ruling allowed the past troubles to be forgotten. Since this ruling in [[Probable year:: 2014]], the United States courts have also alluded to the right to be forgotten as a sect of privacy rights, despite many believing at the time “this right [would not] cross the Atlantic” because of the First Amendment and others believing this right was present before the conventional right to privacy (Gadja, [[Probable year:: 2018]], 206). While the US Supreme Court has not ruled on this right, lower courts have, as the California Supreme Court did in Briscoe v. Reader’s Digest Association in [[Probable year:: 1971]]. Briscoe opined that while the reports of previous crimes were newsworthy, the “identification of the actor in reports of long past crimes usually serve[d] little independent public purpose” other than curiosity given the rehabilitation that had taken place (Briscoe v. Reader’s Digest Association, [[Probable year:: 1971]]) . The plaintiff was allowed to have his past forgotten and the press was not allowed to take this right away, in this instance (Gadja, [[Probable year:: 2018]], 212). However, this right is not internationally recognized, as other states such as Brazil have not supported this right (Library of Congress, [[Probable year:: 2021]]) .
The right to be forgotten and property combine to create the right to one’s name and likeness which is especially important for those in the public eye (Mills, [[Probable year:: 2008]], 220). It is accepted that people have a right to profit off of their own image, much like they have the right to profit off of their inventions or intellectual property (Mills, 2-008, 217-218). This right became clear in court cases soon after the [[Probable year:: 1890]] publication of the Warren & Brandeis article, beginning with Robertson v. Rochester Folding Box Co. in [[Probable year:: 1902]] (Hixon, [[Probable year:: 1987]], 39). Beyond this, of course, are other sects of privacy law that remain pivotal in the protection of privacy rights as it is known today.
References
Briscoe v. Reader’s Digest Association, Inc, 4 Cal. 3d 529 (CA Sup. Ct. 1971). https://law.justia.com/cases/california/supreme-court/3d/4/529.html
Constitute Project. (2021). Grenada 1973, reinstated 1991, revised 1992. https://constituteproject.org/constitution/Grenada_1992?lang=en
Constitute Project. (2021). Saint Kitts and Nevis 1983. https://constituteproject.org/constitution/St_Kitts_and_Nevis_1983?lang=en
Gadja, A. (2018). Privacy, press, and the right to be forgotten in the United States. Washington Law Review 93(1), 201-264. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3144077
Heffernan, W.C. (2016). Privacy and the American Constitution: New rights through interpretation of an old text. Palgrave Macmillan.
Hixon, R.F. (1987). Privacy in a public society: Human rights in conflict. Oxford University Press.
Library of Congress. (2021, Mar. 15). Brazil: Federal supreme court decides right to be forgotten is not supported by constitution. https://www.loc.gov/item/global-legal-monitor/2021-03-15/brazil-federal-supreme-court-decides-right-to-be-forgotten-is-not-supported-by-constitution/
U.S. Constitution. (1787). https://www.archives.gov/founding-docs/constitution-transcript