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Landmark Decisions: Freedom of the Press

  • Branzburg v. Hayes, 408 U.S. 665 (1972)
    Three reporters refused to respond to grand jury subpoenas summoning them to testify in cases investigating drug crimes and Black Panther activities because they had promised to protect the identities of their confidential sources. The Supreme Court ruled that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the freedom of press and expression guaranteed by the First amendment. The Court contended that though reporters may receive information from sources in confidence, they are not privileged to withhold that information from government investigations. Justice White stated that" the public has a right to every man's evidence." The Court also held that since this case did not involve government intervention to impose prior restraint nor any demand for Branzburg to publicly publish sources or disclose them indiscriminately, there was no Constitutional violation. Justices Brennan, Douglas, Marshall and Stewart dissented.

  • Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
    In a well-known murder trial, a Nebraska state trial judge prohibited the press from publishing or broadcasting accounts of the defendant's confessions to the police to assure the accused a fair trial. While the Supreme Court agreed that the trial judge was justified in concluding that there would be intense and pervasive pretrial publicity concerning the case and that publicity might impair the accused's right to a fair trial, the Court still found the "prior restraint" to be unconstitutional. The Court stated that there was no finding that measures short of prior restraint on the press and speech would not have protected the accused's rights. Furthermore, it was not clear that prior restraint on publication would have effectively protected the accused's rights. The court also re-affirmed the settled principle that there is nothing that proscribes the press from reporting events that transpire in the courtroom.

  • Zurcher v. The Stanford Daily, 436 U.S. 547 (1978)
    In 1971, four officers armed with a search warrant made a surprise visit to the newsroom of a student-run university newspaper in search of photographs which would identify the assailants of a police-protestors clash. The search did not uncover negatives or a photo. The Daily filed suit against the police officers and other government officials. The Supreme Court found in favor of the defendants, ruling that third party searches of newsrooms did not violate the Fourth Amendment. In a 5-3 decision, the Court held that such searches, accompanied by warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises." The Court also found that the Framers of the Constitution did not intend for the first amendment to prohibit newsroom searches because they "did not forbid warrants where the press was involved." Following this decision, the Privacy Protection Act, was passed by Congress, shielding newsrooms from most searches by establishing stringent standards to qualify for a warrant to perform such a search.

  • Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555 (1980)
    At the start of a defendant's fourth trial on a murder charge, the state trial court granted defense counsel's motion to close the trial to the public and the media. Richmond Newspapers challenged the action, contending that constitutional considerations mandated that the court must first conclude that the defendant's rights cannot be protected in any other way other than closing the courtroom. On appeal, the Court held that the First Amendment implicitly guaranteed the right to attend criminal trials. The Court held that the First Amendment not only included the right to speak but also the freedom to listen and to receive information and ideas. The Court also held that the First Amendment guarantees the right of assembly in public places like courthouses.

Landmark Decisions: Symbolic Speech

  • United States v. O'Brien, 391 U.S. 367 (1968)
    To express his opposition to the Vietnam War, David O'Brien burned his Selective Service registration certificate before a large crowd in front of the Boston Courthouse. He was convicted for violating a Federal law which prohibited a person from altering, knowingly destroying or mutilating, or in any manner changing such a certificate. The Supreme Court held that the law did not unconstitutionally abridge O'Brien's freedom of speech. The Court then set forth a test, which considered whether or not the regulation is independent from content and specific enough to achieve the government's interest, to determine whether governmental regulation involving symbolic speech was justified. A government regulation is sufficiently justified if (1) it is within the constitutional power of the Government, (2) it furthers an important or substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest. Justice Douglas dissented.

  • Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)
    Three children and their parents challenged a Des Moines school district prohibition against the wearing of armbands. The children had wanted to wear black armbands to school to protest the Vietnam War.The Supreme Court ruled that the wearing an armband as a political protest is a symbolic act and therefore a form of "pure speech." The speech or expression is "pure" because it is not accompanied by disruptive conduct. Without evidence that a prohibition of expression is necessary to avoid substantial interference with school work or discipline, it is not constitutionally permissible.

  • Cohen v. California, 403 U.S. 15 (1971)
    Cohen, who wore a jacket bearing the words "F--k the Draft" in a corridor of the Los Angeles Courthouse, was convicted of violating a California statute which prohibited maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense.

  • Clark v. Community for Creative Nonviolence, 468 U.S. 288 (1984)
    In 1982, the National Park Service issued a demonstration permit to the Community for Creative Non-Violence (CCNV) for Lafayette Park and the Mall. The purpose of the demonstration was to call attention to the plight of the homeless. Although the permit authorized the erection of two symbolic tent cities, the Park Service prohibited demonstrators from sleeping in the symbolic tents because its regulations permit camping only in designated campgrounds, and no campgrounds have ever been designated in Lafayette Park or the Mall. CCNV sued, alleging that application of the regulations violated the First Amendment. The Supreme Court stated that the regulation met the requirements for a reasonable "time, place, or manner" restriction of expression, whether oral, written, or symbolized by conduct. The regulation was neutral with regard to the message presented, and left open ample alternative methods of communicating the intended message. Moreover, the regulation narrowly focused on the Government's substantial interest in maintaining the parks in the heart of the Capital in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them by their presence. To permit camping would be totally inimical to these purposes. None of its provisions are unrelated to the ends that it was designed to serve. Justices Marshall and Brennan dissented.

  • United States v. Eichman, 496 U.S. 310 (1990)
    In 1989, Congress passed the Flag Protection Act, which criminalized the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to the disposal of a "worn or soiled" flag. The Government prosecuted a group of defendants for violating the Act. The District Courts hearing the cases found the Act to be unconstitutional and dismissed the charges. On appeal, the Supreme Court stated that the Government's asserted interest in protecting the "physical integrity" of a privately owned flag to preserve the flag's status as a symbol of the Nation and certain national ideals is related to the suppression of free expression. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals. Because such a restriction on expression cannot be justified without reference to the content of the regulated speech, it must therefore be subjected to the most exacting scrutiny. The Court concluded that the Government's interest cannot justify its infringement on First Amendment rights. While flag desecration is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Justices O'Connor, Rehnquist, Stevens and White dissented.

  • Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
    Two Indiana establishments and their dancers sued to enjoin the enforcement of the state public indecency law. The plaintiffs, who wanted to provide totally nude dancing as entertainment, asserted that the indecency law violated their freedom of expression rights. While the Court stated that nude dancing was expressive conduct, it upheld the public indecency law. Justices Blackmun, Marshal, Stevens and White dissented.
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