Right/Freedom of the Press/Limitations - Restrictions

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 subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question? 🖉 edit

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.

Is this right often curtailed by government authorities for reasons other than those which are generally viewed as permissible? 🖉 edit

Early American history was characterized by hostility to the common law of seditious libel, which restricted political speech. Legal objections sought to restrict the law's oppressive implementation, as in the Zenger case in 1735 (Rabban 1985, 799). English authors like Trenchard and Gordon (under the alias Cato) defended the truth and disregarded the notion that language's "bad tendency" might be used as a form of seditious libel (Rabban 1985, 799). Theoretical defenses of free speech highlighted its importance in limiting governmental authority and fostering good governance. The notion that free speech and the press were necessary for a free society and individual liberty was well-known in both America and England (Rabban 1985, 802). These ideas about the right to free speech were prevalent even before the Sedition Act of 1798 and had a significant impact on how the First Amendment was interpreted (Rabban 1985, 802). Early cases like the Bradford case (1694) added to the Zenger case’s questioning of the common law's long-standing definition of seditious libel. They brought up arguments that the jury should decide whether a publication was seditious and challenged the notion that true remarks might constitute libel (Rabban and Levy 1985). This demonstrated the widespread resistance to the idea of seditious libel in eighteenth-century England and colonial America. Levy however find that these early cases and thinkers such as Cato did not go far enough in their libertarianism regarding Freedom of the Press (Rabban 1985, 802). These arguments were accompanied by theoretical defenses of political expression rights. Different individuals asserted that freedom of speech and the press were crucial for limiting governmental power and upholding a free society, both in England and the American colonies. There is a grand shift between freedom of expression, seditious libel, and freedom of the press before and after the American Revolution (Rabban 1985, 804). The press enjoyed less actual freedom in the years leading up to the American Revolution than it did during the majority of the colonial period. Speaking out against the cause of the Revolution was silenced by those in favor of independence, which curbed freedom of expression (Rabban 1985, 805). Following the Revolution, many states continued to pursue seditious libel cases, and grand juries were more inclined to recommend indictments—especially in light of the Sedition Act of 1798. Seditious libel was not often challenged by libel victims in this era (Rabban 1985, 805). However, in modern-day America, most restrictions of freedom of expression, including that of the press, are limited. Slander, obscenity, pornography, sedition, incitement, fighting words, violation of copyright, trade secrets, food labeling, non-disclosure agreements, the right to privacy, public safety, and perjury are examples of common restrictions on the press. Outside of that, there are no other limits on the Press (Cornell Legal Information Institute). However, 57% of U.S. journalists are either extremely or very concerned about the freedom of the press as of 2023 (Pew Research 2023). More than 50 journalists were arrested or jailed in the US in 2021 while performing their jobs (Freedom Tracker). In 2022, reporters covering the school shooting in Uvalde were threatened with arrest, as well as prevented access from reporting in certain areas (Hernández and Farhi 2022). Journalists have been on high alert regarding potential future suppression of media in the U.S. Meanwhile, in the United Kingdom, the print media tends to act mostly self-regulatory and functions without many statutory restrictions. Everyone including the media has the right to freedom of expression in the UK, according to the Human Rights Act (HRA). However, this right "may be subject to formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society." (Murray et al. 2022). However, libel in the UK functions differently in the US for the press. Britain actually has stricter regulations on freedom of the press. Since the country's libel rules have historically made suing for libel an easy pursuit, oligarchs and other wealthy foreigners and businesses have utilized British courts to sue journalists for news they don't like (Global Campaign for Free Expression 2023). It is far easier to sue these journalists in the UK. In contrast to the US' constitutional tradition, laws in the UK penalizes speech critical of public officials. The UK allows for greater ability to protect one’s public image and reputation (Global Campaign for Free Expression 2023). In comparison to the aforementioned libel cases in the US, the limits of the media are far stricter. In conclusion, there is a complicated and developing narrative to be found in the history of press freedom and early American democracy. The harsh use of seditious libel laws was vigorously resisted in early American history, with examples like the Zenger trial questioning accepted notions of libel. The theoretical foundations of free speech as a defense against excessive political power were well-established, laying the groundwork for the First Amendment's interpretation. While there are certain limitations on the freedom of speech and the press in modern America, they are often only applicable to situations involving slander, obscenity, provocation, and issues related to public safety. However, recent instances of journalists receiving threats, being detained, and having their access restricted underscore growing worries about press freedom in the United States. The UK's libel rules albeit more relaxed have had a history of being exploited by companies upset by the media. The appropriate balance to strike in this dynamic environment between defending free speech and attending to valid concerns is still up for discussion. It is clear that while the concepts of free speech are fundamental to democratic societies, how these concepts are actually put into practice can differ greatly, with repercussions for the media, public discourse, and individual liberty. In the ever-changing world, it is crucial to be attentive to defending and upholding the core ideals of freedom of expression and the press as these difficulties are negotiated (Global Campaign for Free Expression 2023).

Bibliography



Cornell Legal Information Institute. “First Amendment.” LII / Legal Information Institute. Accessed September 22, 2023. https://www.law.cornell.edu/wex/first_amendment.

Freedom Tracker. “More than 50 Journalists Arrested or Detained While on the Job in the US in 2021.” U.S. Press Freedom Tracker. Accessed September 22, 2023. https://pressfreedomtracker.us/blog/arrests-of-journalists-remain-a-threat-to-a-free-press/.

Global Campaign for Free Expression. 2023. “Media Regulation in the United Kingdom.” September 2023. https://www.article19.org/data/files/pdfs/publications/uk-media-regulation.pdf.

Hernández, Arelis R., and Paul Farhi. 2022. “Journalists in Uvalde Are Stonewalled, Hassled, Threatened with Arrest.” The Washington Post, June 28, 2022. https://www.washingtonpost.com/media/2022/06/28/we-were-seen-enemies-journalists-uvalde-threatened-by-police/.

Murray, Calum, Fergus Nolan, Jessica Withey, Joanna Conway, and Katie Major. 2022. “Spotlight: Free Speech and Media Freedom in United Kingdom.” Deloitte Legal, November 21, 2022. https://www.lexology.com/library/detail.aspx?g=91802897-644e-4932-b0fc-eea0e84ed037.

Pew Research. 2023. “Most U.S. Journalists Are Concerned about Future Press Freedoms.” Pew Research Center. May 2, 2023. https://www.pewresearch.org/short-reads/2023/05/02/most-u-s-journalists-are-concerned-about-press-freedoms/.

Rabban, David M. 1985. “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History.” Stanford Law Review 37, no. 3 (February): 795-805. https://doi.org/10.2307/1228715.