1st Amendment and Freedom of the Press

The 1st Amendment provides for the freedom of the press. Some of the founders of the United States asserted the importance of this particular freedom as a foundation of the democratic form of government. "The liberty of the press is essential to the security of the state," said John Adams, the second president of the United States. Adams's successor, Thomas Jefferson, wrote, "Our liberty depends on the freedom of the press, and that cannot be limited without being lost."

This strong belief in the vital importance of a free press dated from colonial times. A landmark court case helped establish certain key rights for the press. In 1735 German immigrant John Peter Zenger was charged with libel in New York for printing harsh criticisms of the colony's governor, William Cosby, in his periodical, the New York Weekly Journal. Zenger spent several months in prison before he was brought to trial. His lawyer, Andrew Hamilton of Philadelphia, decided to plead Zenger's case directly to the jury. The mainspring of the defense was that a defamatory statement could not be held libelous if it was proved to be true. The jury acquitted Zenger, and the newspaper publisher's name became synonymous with freedom of the press in the United States.

Several decades later, newspaper editor Harry Croswell—a Federalist—published a story critical of then president Thomas Jefferson and was tried and convicted of libel. Appealing on his behalf in People of New York v. Harry Croswell (1804), Alexander Hamilton explored the history of libel law. Pointing to Roman law, he argued the truth of a charge was considered a defense against charges of libel. The Supreme Court of New York agreed, and soon after the state legislature enacted that principle into law. Other states followed, and the principle became standard in American law.

In Near v. Minnesota (1931), the Supreme Court struck down a state law providing that newspaper publishers known to publish "malicious" and "scandalous" content could be stopped from publishing articles. The court ruled that this kind of law violated the 1st Amendment guarantee of freedom of the press by imposing a prior restraint, or government interference with freedom of the press by forbidding publication of what it sees as undesirable content. One legal scholar called Near v. Minnesota the Court's "first great press case."

New York Times Company v. Sullivan (1964) involved an accusation of libel brought by L.B. Sullivan, a city commissioner in Montgomery, Alabama. Sullivan charged that an advertisement printed in the newspaper defamed him because it questioned his motives in arresting civil rights leader Martin Luther King Jr. The court ruled that the ad was protected speech under the 1st Amendment. In this unanimous decision, First Amendment protection was extended to all statements, even false ones, about the conduct of public officials unless statements are made maliciously or recklessly.

Near v. Minnesota, in the opinion of some legal scholars, served as an important precedent for the court's decision in New York Times Company v. United States (1971), sometimes known as the "Pentagon Papers Case." The administration of President Richard Nixon tried to block the publication of classified government materials relating to American involvement in Vietnam. The government argued that prior restraint in this case was necessary and justifiable in the interests of national security. The Supreme Court, however, ruled in favor of the newspaper rather than the government. Considerations of security, in the court's view, did not outweigh the "heavy presumption against" prior restraint. Publication of the documents, the justices reasoned, would not result in immediate, inevitable harm endangering American forces. As a result, prior restraint was not justified.

An intriguing variation on the issue of freedom of the press emerged in the 21st century. Beginning in 2006, the organization called WikiLeaks started releasing classified government documents and whistleblowing revelations about hidden actions of government officials based on the public's right to information. WikiLeaks took the position that government in free societies has very little justification for concealing its actions or plans, even when national security may be in question. For WikiLeaks, freedom of the press was an absolute liberty. Some government officials in the United States called for prosecution of WikiLeaks founder Julian Assange and others for violating security laws.