12.4 The First Amendment: Freedom of the Press
Herbert Brucker in his ’Freedom of Information’ has rightly stated that democracy thrives on "facts brought into the minds of its citizens by the press, the radio, and the supplementary media of information." In fact, this system of spreading information has become highly indispensable to the national government.
Freedom of the press is a debatable issue. On the one hand, it may be argued that the public has the right to know the government proceedings. On the other hand it may be held that the government has the right to maintain secrecy over sensitive subjects. Moreover, the press cannot offend the sensibilities of the individual.
12.4a Prior restraint
The English rule of freedom of the press was explained by Blackstone, the oracle of the common law. He stated, "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published." This guarantee against previous restraint of publication has been included in the First and Fourteenth Amendments. This rule was applied in the case of Daniel Ellsberg, a Defense Department contractor who leaked papers on American policy in Vietnam to the New York Times and Washington Post in 1971. Prior restraint by the Nixon administration seeking to prevent publication of these Pentagon Papers, was declared to be an unconstitutional restriction on the freedom of the press, by the Supreme Court.
However exceptional cases do exist, in which the rule against
previous restraint do not apply, as for example, publications during
wartime, meant to obstruct the war effort.
12.4b Subsequent Punishment
The Sedition Act of 1798 introduced the subsequent punishment concept, by making it a crime to utter false, scandalous or malicious statements intended to bring the government or any of its officers into disrepute or "to incite against them the hatred of the good people of the U.S."
In all states, laws have been passed against slander (oral defamation) and libel (written defamation). Words that are used in a false and injurious way without justification are referred to as defamatory words. It is libelous to publish any false statement disparaging the ability of a person to practice his profession or trade. In such a case, a person is subject to criminal as well as civil prosecution, by the injured party. At times libel prosecutions were used to suppress any criticism of government officials and also to prevent a discussion of public issues. Hence the Supreme Court ruled, in 1964, that a public official could only collect damages for a criticism of his official conduct if he could show that the statements were made with knowledge that they were false, or with "actual malice."