First Amendment Coalition Executive Director David Snyder recently gave a guest lecture to undergraduate students in an investigative reporting class at UC Berkeley on key things journalists need to know about the First Amendment. The class is taught by Thomas Peele, a Pulitzer Prize winning journalist who is currently an investigative reporter at EdSource. Here’s a recap of the guest lecture:
‘Congress shall make no law’
Snyder highlighted that the press is the only industry specifically granted protections by the Bill of Rights. Originally, the Bill of Rights was understood as only applying to the federal government, but with the 14th Amendment to the U.S. Constitution, it became clear that state governments also had to adhere to these protections. The First Amendment reads:
“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.”
Snyder talked about the difference between freedom of speech and of the press. Originally, the king and queen of England required the press to be licensed, a practice that ended before the American Revolution, with the recognition that licensure granted too much government control. Reporters in the United States are not required to have licenses. The only exception is that broadcasting companies must be licensed by the Federal Communications Commission, or FCC.
What kind of speech is not protected by the First Amendment?
Snyder’s next topic was protections for free speech and a free press. He listed some types of speech not protected by the First amendment, including defamation, defined as false statements harmful to someone’s reputation; perjury, which is lying under oath; fighting words, meaning specific threats to specific people individuals likely to result in bodily harm; and child pornography. He emphasized that fighting words had to be against specific individuals, and had to be “likely to be carried out.”Snyder described legal protections essential to the press, including the fundamentals of defamation. Lawsuits claiming libel or slander can be “potentially ruinous to a publication.” For someone to prevail with a defamation claim, generally, the publication must at a minimum be proven to be negligent, which is “a flexible term,” Snyder said, which can vary depending on many factors, including how much time the publication had to publish a piece. Courts are willing to grant some leniency for pieces published under tight deadlines, he said. Also, defamation plaintiffs who are public figures must meet a higher standard than negligence — they must prove that the publication acted with “actual malice,” i.e., that it had good reasons to believe the statement at issue was false and still went ahead with publishing the information. These standards came from the U.S. Supreme Court case New York Times v. Sullivan, a seminal libel class. The definition of a public figure can include government officials, whether elected or appointed, people in the news as part of their profession, such as actors and musicians, and those who become public figures due to particular circumstances that make them newsworthy for a time.
Basics of censorship
The next topic was prior restraint, which is any government action that would prevent the publication of news or commentary. This is articulated by the Nebraska Press Association v. Stuart case, which says that this is “the most serious and least tolerable infringement on First Amendment rights.” Prior restraint prevents speech from happening before it happens. This is automatically presumed to be unconstitutional, Snyder said. The most famous case involving prior restraint is the Pentagon Papers case, New York Times Co. v. United States, in which the New York Times fought the Nixon administration’s effort to stop it from publishing articles about leaked classified documents about the Vietnam War.
Protecting confidential news sources
The last topic was protections for journalists from being forced to divulge their sources or other confidential or unpublished information. Most states have shield laws that provide “protection from being compelled to provide confidential sources or notes” as part of a legal process. Both government lawyers and private lawyers in civil cases have the power to subpoena people, ask them to appear in court, etc. But journalists typically can assert specific legal protections to stop or limit such subpoenas.
Snyder described California’s shield law as ensuring journalists cannot be found in contempt for refusing to disclose either sources of information or unpublished information, though there are some instances that are not as clear. The law is not as strong for journalists, he said, in criminal cases when a defendant is the one seeking the information from a journalist, as that may implicate the right to a fair trial. More than half of the states have shield laws, but there is no federal shield law, which has given rise to recent controversies with federal authorities pursuing secret subpoenas targeting reporters as part of media leak investigations. Shield laws at their core are about the ability of the press to expose government wrongdoing or corruption, Snyder told the class. (FAC offers a pro bono legal referral program for journalists targeted with subpoenas seeking unpublished information or confidential sources.)
Interested in having a First Amendment expert guest lecture in your high school or college classroom? Write to FAC at FAC@firstamendmentcoalition.org.
Cricket X. Bidleman is an intern with the First Amendment Coalition.