The Judicial Legacy of “Or of the Press”

The First Amendment guarantees five rights. Freedom of the press is one of them, but what is the purpose of this constitutional guarantee? Is the press, as an institution, so important to American democracy it warrants separate protection? Is there a possibility that this protection will turn into a new right?

Supreme Court Justice Potter Stewart surveyed the American political and cultural landscape of the 1970s and was so struck by the pivotal role of the press that he staked his considerable influence and visibility on trumpeting the value of the Press Clause through a speech on this topic and a law journal essay.[1] He was following in the tradition of a giant of the High Court, Louis Brandeis, whose 1890 law journal article launched the right to privacy,[2] led to his ringing dissent in Olmsted v. United States (1928),[3] and paved the way for Roe v. Wade (1973).[4]

The Fourth Estate

Justice Potter Stewart’s 1975 “Or of the Press”[5] was at the trailing edge of a progressive agenda that dragged American rights into the 18^th century, beginning with Brown v. Board of Education in 1954.[6] According to Justice Stewart, the “primary purpose of the constitutional guarantee of the free press was … to create a fourth institution outside the Government as an additional check on the three official branches.”[7] He did not believe in the conflation of the speech and press clauses, arguing such a construction would be a “constitutional redundancy.”[8] He added, “By including both guarantees in the First Amendment, the Founders quite clearly recognized the distinction between the two.”[9] As the only institution granted specific constitutional protection, the press[10] was assigned an independent role in the American constitutional system because the Framers believed it was essential to effective self-government.[11]

For this vision to gain legal traction, certain factors (legal precedent, political sentiment and the composition of the Supreme Court) have to align in a way that would create the right environment for the shift toward separate protections, just as it happened with Warren and Brandeis’s article.

“Or of the Press” in Court

Justice Stewart delivered his speech in 1974,[12] and since then 40-plus cases at both the federal and state level have cited Stewart’s “Or of the Press”[13] as part of dissents, majority opinions, concurrences, and footnotes. Of those, 16 cases were ruled on at the federal level, with seven utilizing it to construct their major argument: Houchins v. KQED,[14] Pierce v. Capital Cities Communications, Inc.,[15] Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue,[16] Scheetz v. Morning Call, Inc.,[17] Leathers v. Medlock,[18] Herbert v. Lando,[19] and Comcast Cablevision of Broward County, Inc. v. Broward County.[20]

A review of only media-related cases revealed that three of them drew on the major premise of “Or of the Press.”[21] One of these rulings by the United States Court of Appeals for the Second Circuit was later overturned by the Supreme Court.[22]

In Comcast Cablevision of Broward County, Inc. v. Broward County,[23] the United States District Court for the Southern District of Florida quoted “Or of the Press” to stress the special constitutional protections granted to the press. The Supreme Court struck down as unconstitutional the Broward County ordinance, requiring Comcast Cablevision to let competing cable television companies have equal access to its service.[24]

In Pierce v. Capital Cities Communications, Inc., the United States Court of Appeals for the Third Circuit underscored the special role and privilege of the press, ruling that WPVI-TV did not defame the former commissioner of the Delaware River Port Authority, Alfred Pierce, when it alleged corruption in the Port Authority while Pierce served on the commission.[25] The Third Circuit quoted “Or of the Press”:

[T]he press is “not just a neutral vehicle for the balanced discussion of diverse ideas. Instead, the free press meant organized, expert scrutiny of government. The press was a conspiracy of the intellect, with the courage of numbers. This formidable check on official power was what the British Crown had feared – and what the American founders decided to risk.”[26]

Herbert v. Lando, later reversed by the Supreme Court, revolved around a libel case by Army Colonel Anthony Herbert against CBS and the associate producer of the CBS Weekend News, Barry Lando.[27] Herbert demanded access to the information on Lando’s “beliefs, opinions, intent and conclusions in preparing the program” on the cover-up of war crimes in Vietnam and Herbert’s part in uncovering them.[28] Herbert insisted he needed this information to prove actual malice. Lando countered with a First Amendment argument and refused.[29]

The Court recognized the chilling effect such intrusion into the editorial process would have on the media and ruled against Herbert, quoting Justice Stewart’s article on the special guarantees to the press as an institution and its role “as an additional check on the three official branches [of the government].”[30] On appeal, however, the Supreme Court disagreed 6-3, deciding First Amendment protections did not reach so far as to stand on the way of Herbert’s inquiry “into the editorial process of those responsible for the alleged defamatory material, where such inquiry will produce evidence material to the proof of a critical element of the plaintiff’s case.”[31] Justice Stewart dissented, along with Justice William Brennan and Justice Thurgood Marshall.

Shifting Views of the Press

Approximately 20 years have passed since “Or of the Press” was last cited in court. Perhaps this can be attributed to a period when common political and social sentiment was generally favorable toward the free press and its crucial role in American democracy. But only perhaps. In the intervening two decades, America was attacked on September 11, launched two wars, weathered the Dot com collapse and the Great Recession, suffered the decline of newspapers and their business model, adapted to the creation of Facebook and Twitter, was baffled by Edward Snowden’s disclosures of widespread governmental surveillance, endured the ubiquity of the internet and various tech giants, witnessed the rise of Fox News and MSNBC, and withstood the general collapse of any semblance of political compromise and the normalization of protracted political schism rarely seen since the nation’s divisions over slavery. All that was encapsulated in the success of Donald Trump. The press came to be seen as skewed to the left, no longer neutral, and in Trump’s words, “the enemy of the people.”[32]

Justice Stewart delivered his speech amidst the turmoil set off by the Civil Rights controversies of the 1950s and 1960s, demonstrations against the Vietnam War, and most notably the Watergate scandals. This all culminated in the Pentagon Papers[33] case in 1971 and the Supreme Court ruling in the United States v. Nixon[34] three years later that forced President Richard Nixon to release his secret audiotapes.[35]

Referring to a public disturbed by the power and the role of the press in exposing the corruption on the highest levels of the government, Justice Stewart sided with the press. “Newspapers, television networks, and magazines have sometimes been outrageously abusive, untruthful, arrogant, and hypocritical,” he wrote. “But it hardly follows that elimination of strong and independent press is the way to eliminate abusiveness, untruth, arrogance, or hypocrisy from government itself.”[36]

Fast forward 36 years. Donald Trump, as both a presidential candidate and president, harshly criticized the press, showing a level of animosity not seen since Nixon, with “fake news” becoming a rallying cry, accusation, and campaign slogan.[37] President Trump has singled out reporters for retribution and threatened changes in libel laws and other measures.[38]

Coupled with the American public’s rather poor awareness about the First Amendment protections,[39] this trend may very well put the matter of separate press freedom guarantees back on the table for judicial review.

The Supreme Court Today

For all his Twitter attacks, however, President Trump has been extraordinarily disciplined when it comes to the judiciary. He has made as many appointments to the High Court in three years as President Barack Obama, President Bill Clinton, and President George W. Bush did in eight, and the possibility of one more before the 2020 election is very real, given the age and brittle health of several Justices.[40]

Influenced by politics, the composition of the Supreme Court has, with some notable exceptions, served as quite an accurate predictor of its decisions on policy issues contested along the party lines.[41] Prominent legal scholars have in no subtle terms questioned the Roberts Court’s dedication to the First Amendment freedoms.[42] As it is now, the Court is decidedly leaning right, so despite the existing precedent and becoming rather relevant, the vision of the separate guarantees for the press may not find necessary judicial support in the nearest future.

According to the Ninth Amendment, “The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.”[43] This at least holds out the hope that – someday – the Supreme Court may return to Freedom of the Press jurisprudence. Courts still remain generally sympathetic to the main philosophy of “Or of the Press,” although they have not been willing in recent decades to till new constitutional soil. Maybe a groundswell of First Amendment support may grow again in Supreme Court footnotes and dissents – even law journal articles – holding out a promise that under the right circumstances new rights could arise.

About the authors:

Ellada Gamreklidze, Ph.D. is an Assistant Professor at the Communication & Mass Media Department of Angelo State University. The First Amendment has been her research interest since she was a doctoral student at the Louisiana State University.

Thomas Terry, Ph.D. is a Professor at the Journalism & Communication Department of Utah State University. He teaches Media Law and his research foci include agenda setting as well as the First Amendment.

Featured image: Associate Justice Potter Stewart (1915-1985) served on the U.S. Supreme Court 1958-1981. Official portrait by Robert S. Oakes (1976). Photo courtesy of the Library of Congress Prints and Photographs Division.

References

[1] Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 633 (1975).

[2] Warren and Brandeis, The Right to Privacy, 4 Harvard Law Rev. 193 (1890).

[3] Olmstead v. United States, 277 U.S. 438, 478 (1928). The case involved the warrantless wiretapping of private telephone conversations, which the majority found Constitutional. The case was overturned in 1967 in Katz v. United States, 389 U.S. 347.

[4] Roe v. Wade, 410 U.S. 113 (1973). Brandeis, of course, wrote his journal article long before joining the Court, while Stewart was already a Supreme Court Justice.

[5] Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 633 (1975).

[6] Brown v. Board of Education, 347 US 483 (1954).

[7] Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 634 (1975).

[8] Id. at 633.

[9] Id. at 634.

[10] This essay uses “press” as an interchangeable term with “media,” keeping with Justice Stewart’s practice. Where appropriate “media” has been used for clarity.

[11] Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 634 (1975).

[12] “The First Amendment and Freedom of the Press,” accessed September 23, 2019, https://usa.usembassy.de/etexts/media/freepr/essay1.htm.

[13] Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 633 (1975).

[14] Houchins v. KQED, 438 U.S. 1 (1978).

[15] Pierce v. Capital Cities Comm., 576 F2d 495 (1978).

[16] Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue 460 U.S. 575, 585 (1983).

[17] Scheetz v. Morning Call, 747 F.Supp. 1515 (1990).

[18] Leathers v. Medlock 499 U.S. 439 (1991).

[19] Herbert v. Lando, 568 F.2d 974 (1978).

[20] Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000).

[21] Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000); Pierce v. Capital Cities Comm., 576 F2d 495 (1978); Herbert v. Lando, 568 F.2d 974 (1978).

[22] Herbert v. Lando, 568 F.2d 974 (1978).

[23] Comcast Cablevision of Broward County, Inc. v. Broward County, 124 F. Supp. 2d 685 (S.D. Fla. 2000).

[24] Id.

[25] Pierce v. Capital Cities Comm., 576 F2d 495 (1978).

[26] Potter Stewart, Or of the Press, 26 Hastings L.J. 631, 636 (1975).

[27] Herbert v. Lando, 568 F.2d 974 (1978).

[28] Id. at 983.

[29] Id.

[30] Stewart, Or of the Press, 26 Hastings L.J. 631, 633-634 (1975).

[31] Herbert v. Lando 441 U.S. 153, 155 (1979).

[32] “Everything President Trump has Tweeted (and What it was About), Los Angeles Times, accessed March 27, 2018, http://www.latimes.com/politics/la-pol-updates-everything-president-trump-calls-fake-news-media-a-great-1487993240-htmlstory.html.

[33] New York Times Co. v. United States, 403 U.S. 713 (1971).

[34] United States v. Nixon, 418 U.S. 683 (1974).

[35] Id.

[36] Id. at 636.

[37] Natasha Bach, “Trump Continues ‘Fake News Media’ Attacks after Calling for Washington Post Reporter to be Fired,” Fortune, Dec. 11, 2017, accessed March 27, 2018, http://fortune.com/2017/12/11/donald-trump-fake-news-washington-post-weigel/.

[38] Id.; Hadas Gold, “Donald Trump: ‘We’re Going to ‘Open Up’ Libel Laws,” Politico, Feb. 26, 2016, accessed March 27, 2018,  https://www.politico.com/blogs/on-media/2016/02/donald-trump-libel-laws-219866; and Aubree Eliza Weaver, “Trump Calls Current Libel Laws a ‘Sham,’” Politico, Jan. 10, 2018, accessed March 27, 2018, https://www.politico.com/story/2018/01/10/trump-libel-laws-2018-333705; Jenna Johnson, “Trump Suggests Senate Intelligence Committee Investigate Media Companies, Washington Post, Oct. 5, 2017, accessed March 27, 2018, https://www.washingtonpost.com/news/post-politics/wp/2017/10/05/trump-suggests-senate-intelligence-committee-investigate-media-companies/?utm_term=.65ad0952f5ae; Luis Gomez, “Trump Calls to ‘Challenge’ NBC’s License. FCC Responds: ‘Not How it Works,” San Diego Union-Tribune, Oct. 11, 2017, accessed March 27, 2018, http://www.sandiegouniontribune.com/opinion/the-conversation/sd-could-trump-revoke-nbc-license-after-nuclear-arsenal-report-20171011-htmlstory.html; David A. Graham, “Trump Wants to Censor the Media,” The Atlantic, Oct. 5, 2017, accessed March 27, 2018, https://www.theatlantic.com/politics/archive/2017/10/trump-wants-to-censor-the-press/542142/; Matthew Rosenberg and Maggie Haberman, “Trump’s Longtime Lawyer Sue BuzzFeed and the Firm Behind Russia Dossier,” New York Times, Jan. 9, 2018, accessed March 27, 2018, https://www.nytimes.com/2018/01/09/us/politics/michael-cohen-russia-dossier-buzzfeed.html.

[39] “Americans are Poorly Informed about Basic Constitutional Provisions,” Sept. 12, 2017, accessed March 27, 2018, https://www.annenbergpublicpolicycenter.org/americans-are-poorly-informed-about-basic-constitutional-provisions/.

[40] Russell Wheeler, “Trump’s Judicial Appointments Record at the August Recess: A Little Less than Meets the Eye,” Brookings, Aug. 8, 2019, accessed Sept. 23, 2019, https://www.brookings.edu/blog/fixgov/2019/08/08/trumps-judicial-appointments-record-at-the-august-recess-a-little-less-than-meets-the-eye/.

[41] Lawrence Baum, Ideology in the Supreme Court, Princeton University Press 2017; Philip Bump, “How Political Ideology Influenced Recent Supreme Court Votes,” The Washington Post, Oct. 4, 2018, accessed Sept. 23, 2019 https://www.washingtonpost.com/politics/2018/10/04/how-political-ideology-has-influenced-recent-supreme-court-votes/.

[42] Irwin Chemerinsky, Not a Free Speech Court, 53 Arizona Law Rev. 724 (2011). Lee Epstein and Jeffrey A. Segal, Measuring Issue Salience, 44 American Journal of Political Science 66 (2000); Marjorie Heins, “The Supreme Court and Political Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project,” 76 Albany Law Rev. 562-563 (2012/2013); David L. Hudson Jr., Chief Justice Roberts and the First Amendment, The First Amendment Center (blog) April 222011, http://www.newseuminstitute.org/first-amendment-center/chief-justice-roberts-and-the-first-amendment/; Adam Liptak, Study Challenges Supreme Court’s Image as Defender of Free Speech, N.Y. Times, , Jan. 7, (2012), https://www.nytimes.com/2012/01/08/us/study-challenges-supreme-courts-image-as-defender-of-free-speech.html.

[43] U. S. Constitution, Ninth Amendment.