Right/Freedom of the Press/Legal Codification

Freedom of the Press

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is this right enshrined in international and regional human rights treaties? 🖉 edit

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.

Is it contained in the US Constitution? 🖉 edit

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 1789 (Rev. 1992) Constitution - Constitute, 1992) .

Has it been interpreted as being implicit in the US Constitution? 🖉 edit

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

Are there any exceptions in American law to this right? 🖉 edit

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 1917, and the Sedition Act of 1918.

The Espionage Act of 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 ( 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 ( 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, 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, 1968, pg. 169). An amendment was added to the Espionage Act, the Sedition Act of 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, 2021) .

Eventually, the early 20th century war-era acts were reversed by the 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, 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, 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, 2016, pg. 127; Greenwald, 2013; Volokh, 2018) .

Other exceptions to freedom of the press exist. One example is that of obscenity. In 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., 1973) .

Defamation is another exception, of which the 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, 1964) .

Lastly, there is a limit as to what extent the press can protect their reporters’ confidentiality, and this was established in the 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, 1972) .