When students from other cultures attend school in the United States, many are astounded by the number of books, news articles, editorials, cartoons, films, TV shows, and Web sites that make fun of U.S. presidents, the military, and the police. Many countries’ governments throughout history have jailed, or even killed, their citizens for such speech “violations.” For instance, between 1992 and September 2014, more than one thousand international journalists were killed in the line of duty, often because someone disagreed with what they wrote or reported.6 In the United States, however, we have generally taken for granted our right to criticize and poke fun at the government and other authority figures. Moreover, many of us are unaware of the ideas that underpin our freedoms and don’t realize the extent to which those freedoms surpass those in most other countries.

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In fact, a 2014 survey related that sixty-six nations allow virtually no freedom of the press, with those governments exercising tight control over the news media and even intimidating, jailing, and executing journalists. Only one in seven people on the planet live in a country with a free media system.7

Models of Expression

Since the mid-1950s, four conventional models for speech and journalism have been used to categorize the widely differing ideas underlying free expression.8 These models include the authoritarian, communist, social responsibility, and libertarian concepts. They are distinguished by the levels of freedom permitted and by the attitudes of the ruling and political classes toward the freedoms granted to the average citizen. Today, given the diversity among nations, the experimentation of journalists, and the collapse of many communist press systems, these categories are no longer as relevant. Nevertheless, they offer a good point of departure for discussing the press and democracy.

The authoritarian model developed at about the time the printing press first arrived in sixteenth-century England. Its advocates held that the general public, largely illiterate in those days, needed guidance from an elite, educated ruling class. Government criticism and public dissent were not tolerated, especially if such speech undermined “the common good”—an ideal that elites and rulers defined and controlled. Censorship was also frequent, and the government issued printing licenses primarily to publishers who were sympathetic to government and ruling-class agendas.

Today, many authoritarian systems operate in developing countries throughout Asia, Latin America, and Africa, where journalism often joins with government and business to foster economic growth, minimize political dissent, and promote social stability, because state leaders believe that too much speech freedom would undermine the delicate stability of their nations’ social infrastructures. In these societies, criticizing government programs may be viewed as an obstacle to keeping the peace, and both reporters and citizens may be punished if they question leaders and the status quo too fiercely.

In the authoritarian model, the news is controlled by private enterprise. But under the communist or state model, the press is controlled by the government because state leaders believe the press should serve the goals of the state. Although some government criticism is tolerated under this model, ideas that challenge the basic premises of state authority are not. Although state media systems were in decline throughout the 1990s, there are still a few countries using this model, including Myanmar (Burma), China, Cuba, and North Korea.

The social responsibility model characterizes the ideals of mainstream journalism in the United States. The concepts and assumptions behind this model were outlined in 1947 by the Hutchins Commission, which was formed to examine the increasing influence of the press. The commission’s report called for the development of press watchdog groups because the mass media had grown too powerful and needed to become more socially responsible. Key recommendations encouraged comprehensive news reports that put issues and events in context; more news forums for the exchange of ideas; better coverage of society’s range of economic classes and social groups; and stronger overviews of our nation’s social values, ideals, and goals.

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A socially responsible press is usually privately owned (although the government technically operates the broadcast media in most European democracies). In this model, the press functions as a Fourth Estate—that is, as an unofficial branch of government that monitors the legislative, judicial, and executive branches for abuses of power. In theory, private ownership keeps the news media independent of government. Thus they are better able to watch over the system on behalf of citizens. Under this model, the press supplies information to citizens so that they can make informed decisions regarding political and social issues.

The flip side of the state and authoritarian models and a more radical extension of the social responsibility model, the libertarian model encourages vigorous government criticism and supports the highest degree of individual and press freedoms. Under a libertarian model, no restrictions would be placed on the mass media or on individual speech. Libertarians tolerate the expression of everything, from publishing pornography to advocating anarchy. In North America and Europe, many alternative newspapers and magazines operate on such a model. Placing a great deal of trust in citizens’ ability to distinguish truth from fabrication, libertarians maintain that speaking out with absolute freedom is the best way to fight injustice and arrive at the truth.

The First Amendment of the U.S. Constitution

To understand the development of free expression in the United States, we must first understand how the idea for a free press came about. In various European countries throughout the seventeenth century, in order to monitor—and punish, if necessary—the speech of editors and writers, governments controlled the circulation of ideas through the press by requiring printers to obtain licenses from them. However, in 1644, English poet John Milton, author of Paradise Lost, published his essay Areopagitica, which opposed government licenses for printers and defended a free press. Milton argued that all sorts of ideas, even false ones, should be allowed to circulate freely in a democratic society because eventually the truth would emerge. In 1695, England stopped licensing newspapers, and most of Europe followed. In many democracies today, publishing a newspaper, magazine, or newsletter remains one of the few public or service enterprises that requires no license.

Less than a hundred years later, the writers of the U.S. Constitution were ambivalent about the freedom of the press. In fact, the Constitution as originally ratified in 1788 didn’t include a guarantee of freedom of the press. Constitutional framer Alexander Hamilton thought it impractical to attempt to define “liberty of the press” and believed that whatever declarations might be added to the Constitution, its security would ultimately depend on public opinion. At that time, though, nine of the original thirteen states had charters defending the freedom of the press, and the states pushed to have federal guarantees of free speech and press approved at the first session of the new Congress. The Bill of Rights, which contained the first ten amendments to the Constitution, was adopted in 1791.

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The commitment to freedom of the press, however, was not resolute. In 1798, the Federalist Party, which controlled the presidency and Congress, passed the Sedition Act to silence opposition to an anticipated war against France. Led by President John Adams, the Federalists believed that defamatory articles by the opposition Democratic-Republican Party might stir up discontent against the government and undermine its authority. Over the next three years, twenty-five individuals were arrested and ten were convicted under the act, which was also used to prosecute anti-Federalist newspapers. After failing to curb opposition, the Sedition Act expired in 1801 during Thomas Jefferson’s presidency. Jefferson, a Democratic-Republican who had challenged the act’s constitutionality, pardoned all defendants convicted under it.9 Ironically, the Sedition Act, the first major attempt to constrain the First Amendment, became the defining act in solidifying American support behind the notion of a free press. As journalism historian Michael Schudson explained, “Only in the wake of the Sedition Act did Americans boldly embrace a free press as a necessary bulwark of a liberal civil order.”10

Censorship as Prior Restraint

In the United States, the First Amendment has theoretically prohibited censorship. Over time, Supreme Court decisions have defined censorship as prior restraint. This means that courts and governments cannot block any publication or speech before it actually occurs, on the principle that a law has not been broken until an illegal act has been committed. In 1931, for example, the Supreme Court determined in Near v. Minnesota that a Minneapolis newspaper could not be stopped from publishing “scandalous and defamatory” material about police and law officials whom they felt were negligent in arresting and punishing local gangsters.11 However, the Court left open the idea that the news media could be ordered to halt publication in exceptional cases. During a declared war, for instance, if a U.S. court judged that the publication of an article would threaten national security, such expression could be restrained prior to its printing. In fact, during World War I, the U.S. Navy seized all wireless radio transmitters. This was done to ensure control over critical information about weather conditions and troop movements that might inadvertently aid the enemy. In the 1970s, though, the Pentagon Papers decision and the Progressive magazine case tested important concepts underlying prior restraint.

The Pentagon Papers Case

In 1971, with the Vietnam War still in progress, Daniel Ellsberg, a former Defense Department employee, stole a copy of the forty-seven-volume report History of U.S. Decision-Making Process on Vietnam Policy. A thorough study of U.S. involvement in Vietnam since World War II, the report was classified by the government as top secret. Ellsberg and a friend leaked the study—nicknamed the Pentagon Papers—to the New York Times and the Washington Post. In June 1971, the Times began publishing articles based on the study. To block any further publications, the Nixon administration applied for and received a federal court injunction against the Times, arguing that the publication of these documents posed “a clear and present danger” to national security.

A lower U.S. district court supported the newspaper’s right to publish, but the government’s appeal put the case before the Supreme Court less than three weeks after the first article was published. In a six-to-three vote, the Court sided with the newspaper. Justice Hugo Black, in his majority opinion, attacked the government’s attempt to suppress publication: “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”12 (See “Media Literacy and the Critical Process: Who Knows the First Amendment?” on page 544.)

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The Progressive Magazine Case

The issue of prior restraint for national security surfaced again in 1979, when an injunction was issued to block publication of the Progressive, a national left-wing magazine, in which the editors planned to publish an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.” The dispute began when the editor of the magazine sent a draft to the Department of Energy to verify technical portions of the article. Believing that the article contained sensitive data that might damage U.S. efforts to halt the proliferation of nuclear weapons, the Energy Department asked the magazine not to publish it. When the magazine said it would proceed anyway, the government sued the Progressive and asked a federal district court to block publication.

Judge Robert Warren sought to balance the Progressive’s First Amendment rights against the government’s claim that the article would spread dangerous information and undermine national security. In an unprecedented action, Warren sided with the government, deciding that “a mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.”13 During appeals and further litigation, several other publications, including the Milwaukee Sentinel and Scientific American, published their own articles related to the H-bomb, getting much of their information from publications already in circulation. None of these articles, including the one eventually published in the Progressive—after the government dropped the case during an appeal—contained the precise technical details needed to actually design a nuclear weapon, nor did they provide information on where to obtain the sensitive ingredients.

Even though the article was eventually published, Warren’s decision stands as the first time in American history that a prior-restraint order imposed in the name of national security actually stopped the initial publication of a controversial news report.

Unprotected Forms of Expression

Despite the First Amendment’s provision that “Congress shall make no law” restricting speech, the federal government has made a number of laws that do just that, especially concerning false or misleading advertising, expressions that intentionally threaten public safety, and certain speech that compromises war strategy and other issues of national security.

Beyond the federal government, state laws and local ordinances have on occasion curbed expression, and over the years the court system has determined that some kinds of expression do not merit protection under the Constitution, including seditious expression, copyright infringement, libel, obscenity, the right to privacy, and expression that interferes with the Sixth Amendment.

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Seditious Expression

For more than a century after the Sedition Act of 1798, Congress passed no laws prohibiting dissenting opinion. But by the twentieth century, the sentiments of the Sedition Act reappeared in times of war. For instance, the Espionage Acts of 1917 and 1918, which were enforced during World Wars I and II, made it a federal crime to disrupt the nation’s war effort, authorizing severe punishment for seditious statements.

In the landmark Schenck v. United States (1919) appeal case during World War I, the Supreme Court upheld the conviction of a Socialist Party leader, Charles T. Schenck, for distributing leaflets urging American men to protest the draft, in violation of the recently passed Espionage Act. In upholding the conviction, Justice Oliver Wendell Holmes wrote two of the more famous interpretations and phrases in the First Amendment’s legal history:

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But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In supporting Schenck’s sentence—a ten-year prison term—Holmes noted that the Socialist leaflets were entitled to First Amendment protection, but only during times of peace. In establishing the “clear and present danger” criterion for expression, the Supreme Court demonstrated the limits of the First Amendment.

And in 2010, after WikiLeaks released thousands of confidential U.S. embassy cables into the public domain, the U.S. Justice Department contemplated charging the Web site’s founder, Julian Assange, with violating the 1917 Espionage Act. In June 2012, Assange took refuge inside the Ecuadorian embassy in London, where he was granted diplomatic asylum. The U.S. government instead pursued Espionage Act charges against Private First Class Bradley (now Chelsea) Manning, an intelligence analyst in Iraq, who admitted to releasing the information to WikiLeaks to show the flaws of U.S. strategies in Iraq and Afghanistan. Manning was convicted and sentenced to thirty-five years in prison in August 2013.

Copyright Infringement

Appropriating a writer’s or an artist’s words or music without consent or payment is also a form of expression that is not protected as speech. A copyright legally protects the rights of authors and producers to their published or unpublished writing, music, lyrics, TV programs, movies, or graphic art designs. When Congress passed the first Copyright Act in 1790, it gave authors the right to control their published works for fourteen years, with the opportunity for a renewal for another fourteen years. After the end of the copyright period, the work enters the public domain, which gives the public free access to the work. The idea was that a period of copyright control would give authors financial incentive to create original works, and that the public domain gives others incentive to create derivative works.

Over the years, as artists lived longer and, more important, as corporate copyright owners became more common, copyright periods were extended by Congress. In 1976, Congress extended the copyright period to the life of the author plus fifty years, or seventy-five years for a corporate copyright owner. In 1998 (as copyrights on works such as Disney’s Mickey Mouse were set to expire), Congress again extended the copyright period for twenty additional years—the eleventh time in forty years that the terms for copyright had been extended.14 As Timothy B. Lee of the Washington Post points out, “The big question now is whether incumbent copyright holders will try to get yet another extension of copyright terms before works begin falling into the public domain again on January 1, 2019.”15 (See “Examining Ethics: A Generation of Copyright Criminals?” on page 564.)

Corporate owners have millions of dollars to gain by keeping their properties out of the public domain. Disney, a major lobbyist for the 1998 extension, would have lost its copyright to Mickey Mouse in 2004 but now continues to earn millions on its movies, T-shirts, and Mickey Mouse watches through 2024. Warner/Chappell Music, which made up to $2 million a year in royalties from the popular “Happy Birthday to You” song, lost its copyright in a 2015 lawsuit, when a U.S. District judge ruled that it didn’t have a valid claim to the 120-year-old song.

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Today, nearly every innovation in digital culture creates new questions about copyright law. For example, is a video mash-up that samples copyrighted sounds and images a copyright violation or a creative accomplishment protected under the concept of fair use (the same standard that enables students to legally quote attributed text from other works in their research papers)? Is it fair use for a blog to quote an entire newspaper article as long as it has a link and an attribution? Should news aggregators like Google News and Yahoo! News pay something to financially strapped newspapers when they link to their articles? One of the laws that tips the debates toward stricter enforcement of copyright is the Digital Millennium Copyright Act of 1998, which outlaws any action or technology that circumvents copyright protection systems. In other words, it may be illegal to merely create or distribute technology that enables someone to make illegal copies of digital content, such as a music file or a DVD.

Libel

The biggest legal worry that haunts editors and publishers is the issue of libel, a form of expression that, unlike political expression, is not protected as free speech under the First Amendment. Libel refers to defamation of character in written or broadcast form; libel is different from slander, which is spoken language that defames a person’s character. Inherited from British common law, libel is generally defined as a false statement that holds a person up to public ridicule, contempt, or hatred or injures a person’s business or occupation. Examples of libelous statements include falsely accusing someone of professional dishonesty or incompetence (such as medical malpractice), falsely accusing a person of a crime (such as drug dealing), falsely stating that someone is mentally ill or engages in unacceptable behavior (such as public drunkenness), or falsely accusing a person of associating with a disreputable organization or cause (such as the Mafia or a neo-Nazi military group).

Since 1964, the New York Times v. Sullivan case has served as the standard for libel law. The case stems from a 1960 full-page advertisement placed in the New York Times by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South. Without naming names, the ad criticized the law-enforcement tactics used in southern cities—including Montgomery, Alabama—to break up Civil Rights demonstrations. The ad condemned “southern violators of the Constitution” bent on destroying King and the movement. Taking exception, the city commissioner of Montgomery, L. B. Sullivan, sued the Times for libel, claiming the ad defamed him indirectly. Although Alabama civil courts awarded Sullivan $500,000, the newspaper’s lawyers appealed to the Supreme Court, which unanimously reversed the ruling, holding that Alabama libel law violated the Times’ First Amendment rights.16

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As part of the Sullivan decision, the Supreme Court asked future civil courts to distinguish whether plaintiffs in libel cases are public officials or private individuals. Citizens with more “ordinary” jobs, such as city sanitation employees, undercover police informants, nurses, or unknown actors, are normally classified as private individuals. Private individuals have to prove (1) that the public statement about them was false, (2) that damages or actual injury occurred (such as the loss of a job, harm to reputation, public humiliation, or mental anguish), and (3) that the publisher or broadcaster was negligent in failing to determine the truthfulness of the statement.

There are two categories of public figures: (1) public celebrities (movie or sports stars) or people who “occupy positions of such pervasive power and influence that they are deemed public figures for all purposes” (presidents, senators, mayors), and (2) individuals who have thrown themselves—usually voluntarily but sometimes involuntarily—into the middle of “a significant public controversy,” such as a lawyer defending a prominent client, an advocate for an antismoking ordinance, or a labor union activist.

Public officials also have to prove falsehood, damages, negligence, and actual malice on the part of the news medium; actual malice means that the reporter or editor knew the statement was false and printed or broadcast it anyway, or acted with a reckless disregard for the truth. Because actual malice against a public official is hard to prove, it is difficult for public figures to win libel suits. The Sullivan decision allowed news operations to aggressively pursue legitimate news stories without fear of continuous litigation. However, the mere threat of a libel suit still scares off many in the news media. Plaintiffs may also belong to one of many vague classification categories, such as public high school teachers, police officers, and court-appointed attorneys. Individuals from these professions end up as public or private citizens depending on a particular court’s ruling.

Defenses against Libel Charges

Since the 1730s, the best defense against libel in American courts has been the truth. In most cases, if libel defendants can demonstrate that they printed or broadcast statements that were essentially true, such evidence usually bars plaintiffs from recovering any damages—even if their reputations were harmed.

In addition, there are other defenses against libel. Prosecutors, for example, who would otherwise be vulnerable to being accused of libel are granted absolute privilege in a court of law so that they are not prevented from making accusatory statements toward defendants. The reporters who print or broadcast statements made in court are also protected against libel; they are granted conditional or qualified privilege, allowing them to report judicial or legislative proceedings even though the public statements being reported may be libelous.

Another defense against libel is the rule of opinion and fair comment. Generally, libel applies only to intentional misstatements of factual information rather than opinion, and therefore opinions are protected from libel. However, because the line between fact and opinion is often hazy, lawyers advise journalists first to set forth the facts on which a viewpoint is based and then to state their opinion based on those facts. In other words, journalists should make it clear that a statement of opinion is a criticism and not an allegation of fact.

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One of the most famous tests of opinion and fair comment occurred in 1983, when Larry Flynt, publisher of Hustler magazine, published a spoof of a Campari advertisement depicting conservative minister and political activist Jerry Falwell as a drunk and as having had sexual relations with his mother. In fine print at the bottom of the page, a disclaimer read: “Ad parody—not to be taken seriously.” Often a target of Flynt’s irreverence and questionable taste, Falwell sued for libel, asking for $45 million in damages. In the verdict, the jury rejected the libel suit but found that Flynt had intentionally caused Falwell emotional distress, awarding Falwell $200,000. The case drew enormous media attention and raised concerns about the erosion of the media’s right to free speech. However, Flynt’s lawyers appealed, and in 1988 the Supreme Court unanimously overturned the verdict. Although the Court did not condone the Hustler spoof, the justices did say that the magazine was entitled to constitutional protection. In affirming Hustler’s speech rights, the Court suggested that even though parodies and insults of public figures might indeed cause emotional pain, denying the right to publish them and awarding damages for emotional reasons would violate the spirit of the First Amendment.17

Libel laws also protect satire, comedy, and opinions expressed in reviews of books, plays, movies, and restaurants. Such laws may not, however, protect malicious statements in which plaintiffs can prove that defendants used their free-speech rights to mount a damaging personal attack.

Obscenity

For most of this nation’s history, legislators have argued that obscenity does not constitute a legitimate form of expression protected by the First Amendment. The problem, however, is that little agreement has existed on how to define an obscene work. In the 1860s, a court could judge an entire book obscene if it contained a single passage believed capable of “corrupting” a person. In fact, throughout the nineteenth century, certain government authorities outside the courts—especially U.S. post office and customs officials—held the power to censor or destroy material they deemed obscene.

This began to change in the 1930s, during the trial involving the celebrated novel Ulysses by Irish writer James Joyce. Portions of Ulysses had been serialized in the early 1920s in an American magazine, Little Review, copies of which were later seized and burned by postal officials. The publishers of the magazine were fined $50 and nearly sent to prison. Because of the four-letter words contained in the novel and the book-burning and fining incidents, British and American publishing houses backed away from the book, and in 1928, the U.S. Customs Office officially banned Ulysses as an obscene work. Ultimately, however, Random House agreed to publish the work in the United States if it was declared “legal.” Finally, in 1933, a U.S. judge ruled that an important literary work such as Ulysses was a legitimate, protected form of expression, even if portions of the book were deemed objectionable by segments of the population.

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In a landmark 1957 case, Roth v. United States, the Supreme Court offered this test of obscenity: whether to an “average person,” applying “contemporary standards,” the major thrust or theme of the material “taken as a whole” appealed to “prurient interest” (in other words, was intended to “incite lust”). By the 1960s, based on Roth, expression was not obscene if only a small part of the work lacked “redeeming social value.”

The current legal definition of obscenity derives from the 1973 Miller v. California case, which stated that to qualify as obscenity, the material must meet three criteria: (1) the average person, applying contemporary community standards, would find that the material as a whole appeals to prurient interest; (2) the material depicts or describes sexual conduct in a patently offensive way; and (3) the material, as a whole, lacks serious literary, artistic, political, or scientific value. The Miller decision contained two important ideas not present in Roth. First, it acknowledged that different communities and regions of the country have different values and standards with which to judge obscenity. Second, it required that a work be judged as a whole, so that publishers could not use the loophole of inserting a political essay or literary poem into pornographic materials to demonstrate in court that their publications contained redeeming features.

Since the Miller decision, courts have granted great latitude to printed and visual obscenity. By the 1990s, major prosecutions had become rare—aimed mostly at child pornography—as the legal system accepted the concept that a free and democratic society must tolerate even repulsive kinds of speech. Most battles over obscenity are now online, where the global reach of the Internet has eclipsed the concept of community standards. A new complication in defining pornography has emerged with cases of “sexting,” in which minors produce and send sexually graphic images of themselves via cell phones or the Internet (see “Case Study: Is ‘Sexting’ Pornography?” on page 550).

The Right to Privacy

Whereas libel laws safeguard a person’s character and reputation, the right to privacy protects an individual’s peace of mind and personal feelings. In the simplest terms, the right to privacy addresses a person’s right to be left alone, without his or her name, image, or daily activities becoming public property. Invasions of privacy occur in different situations, the most common of which are intrusion into someone’s personal space via unauthorized tape recording, photographing, wiretapping, and the like; making available to the public personal records, such as health and phone records; disclosing personal information, such as religion, sexual activities, or personal activities; and unauthorized appropriation of someone’s image or name for advertising or other commercial purposes. In general, the news media have been granted wide protections under the First Amendment to do their work. For instance, the names and pictures of both private individuals and public figures can usually be used without their consent in most news stories. Additionally, if private citizens become part of public controversies and subsequent news stories, the courts have usually allowed the news media to treat them like public figures (that is, to record their quotes and use their images without the individuals’ permission). The courts have even ruled that accurate reports of criminal and court records, including the identification of rape victims, do not normally constitute privacy invasions. Nevertheless, most newspapers and broadcast outlets use their own internal guidelines and ethical codes to protect the privacy of victims and defendants, especially in cases involving rape and child abuse.

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Public figures, however, have received some legal relief, as many local municipalities and states have passed “anti-paparazzi” laws that protect individuals from unwarranted scrutiny and surveillance of personal activities on private property or outside public forums. Some courts have ruled that photographers must keep a certain distance from celebrities, although powerful zoom lens technology usually overcomes this obstacle. However, every year brings a few stories of a Hollywood actor or sports figure punching a tabloid photographer or TV cameraman who got too close. And in 2004, the Supreme Court ruled—as an exception to the Freedom of Information Act—that families of prominent figures who have died have the right to object to the release of autopsy photos, so that the images are not exploited.

A number of laws also protect the privacy of regular citizens. For example, the Privacy Act of 1974 protects individuals’ records from public disclosure unless individuals give written consent. The Electronic Communications Privacy Act of 1986 extended the law to computer-stored data and the Internet, although subsequent court decisions ruled that employees have no privacy rights in electronic communications conducted on their employer’s equipment. The USA PATRIOT Act of 2001, however, weakened the earlier laws and gave the federal government more latitude in searching private citizens’ records and intercepting electronic communications without a court order.

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First Amendment versus Sixth Amendment

Over the years, First Amendment protections of speech and the press have often clashed with the Sixth Amendment, which guarantees an accused individual in “all criminal prosecutions . . . the right to a speedy and public trial, by an impartial jury.” In 1954, for example, the Sam Sheppard case garnered enormous nationwide publicity and became the inspiration for the TV show and film The Fugitive. Featuring lurid details about the murder of Sheppard’s wife, the press editorialized in favor of Sheppard’s quick arrest; some papers even pronounced him guilty. A prominent and wealthy osteopath, Sheppard was convicted of the murder, but twelve years later Sheppard’s new lawyer, F. Lee Bailey, argued before the Supreme Court that his client had not received a fair trial because of prejudicial publicity in the press. The Court overturned the conviction and freed Sheppard.

Gag Orders and Shield Laws

A major criticism of recent criminal cases concerns the ways in which lawyers use the news media to comment publicly on cases that are pending or are in trial. After the Sheppard reversal in the 1960s, the Supreme Court introduced safeguards that judges could employ to ensure fair trials in heavily publicized cases. These included sequestering juries (Sheppard’s jury was not sequestered); moving cases to other jurisdictions; limiting the number of reporters; and placing restrictions, or gag orders, on lawyers and witnesses. In some countries, courts have issued gag orders to prohibit the press from releasing information or giving commentary that might prejudice jury selection or cause an unfair trial. In the United States, however, especially since a Supreme Court review in 1976, gag orders have been struck down as a prior-restraint violation of the First Amendment.

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In opposition to gag orders, shield laws have favored the First Amendment rights of reporters, protecting them from having to reveal their sources for controversial information used in news stories. The news media have argued that protecting the confidentiality of key sources maintains a reporter’s credibility, protects a source from possible retaliation, and serves the public interest by providing information that citizens might not otherwise receive. In the 1960s, when the First Amendment rights of reporters clashed with Sixth Amendment fair-trial concerns, judges usually favored the Sixth Amendment arguments. In 1972, a New Jersey journalist became the first reporter jailed for contempt of court for refusing to identify sources in a probe of the Newark housing authority. Since that case, forty states and the District of Columbia have adopted some type of shield law, and other states (except Wyoming) have established some shield law protection through legal precedent. There is no federal shield law in the United States, leaving journalists exposed to subpoenas from federal prosecutors and courts. Revelations that the U.S. Department of Justice had obtained phone records of the Associated Press renewed calls for a federal shield law in 2013.

Cameras in the Courtroom

The debates over limiting intrusive electronic broadcast equipment and photographers in the courtroom actually date to the sensationalized coverage of the Bruno Hauptmann trial in the mid-1930s. Hauptmann was convicted and executed for the kidnap-murder of the nineteen-month-old son of Anne and Charles Lindbergh (the aviation hero who made the first solo flight across the Atlantic Ocean in 1927). During the trial, Hauptmann and his attorney complained that the circus atmosphere fueled by the presence of radio and flash cameras prejudiced the jury and turned the public against him.

After the trial, the American Bar Association amended its professional ethics code, Canon 35, stating that electronic equipment in the courtroom detracted “from the essential dignity of the proceedings.” Calling for a ban on photographers and radio equipment, the association believed that if such elements were not banned, lawyers would begin playing to audiences and negatively alter the judicial process. For years after the Hauptmann trial, almost every state banned photographic, radio, and TV equipment from courtrooms.

As broadcast equipment became more portable and less obtrusive, however, and as television became the major news source for most Americans, courts gradually reevaluated their bans on broadcast equipment. In fact, in the early 1980s, the Supreme Court ruled that the presence of TV equipment did not make it impossible for a fair trial to occur, leaving it up to each state to implement its own system. The ruling opened the door for the debut of Court TV (now truTV) in 1991 and the televised O.J. Simpson trial of 1994 (the most publicized case in history). All states today allow television coverage of cases, although most states place certain restrictions on coverage of courtrooms, often leaving it up to the discretion of the presiding judge. While U.S. federal courts now allow limited TV coverage of their trials, the Supreme Court continues to ban TV from its proceedings, but in 2000 the Court broke its anti-radio rule by permitting delayed radio broadcasts of the hearings on the Florida vote recount case that determined the winner of the 2000 presidential election.

As libel law and the growing acceptance of courtroom cameras indicate, the legal process has generally, though not always, tried to ensure that print and other news media are able to cover public issues broadly, without fear of reprisals.

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