Warm Up 12/9 Explain and give an example of the concept of an “adversarial press.”

Objectives Describe the difference between bias and unfair/unethical newspaper practices. Evaluate the checking power in the first amendment.

What are ethics?

What makes a newspaper unfair or unethical? They get the facts wrong. They refuse to admit errors. They won’t name names. They concentrate on bad news. They insert editorial bias into news stories.

A deliberation is... A meaningful discussion – the focused exchange of ideas and the analysis of arguments with the aim of making a decision

Deliberation: How To Read the material carefully. Focus on the deliberation question. Listen carefully to what others are saying. Check for understanding. Analyze what others say. Speak and encourage others to speak. Refer to the reading to support your ideas. Use relevant background knowledge, including life experiences, in a logical way. Use your heart and mind to express ideas and opinions. Remain engaged and respectful when controversy arises. Focus on ideas, not personalities.

Important SC Cases

Rex v. Zenger (1735) The colony of New York tried publisher John Peter Zenger for seditious libel against the governor. At that time, truth was not a defense in a libel case. Zenger’s attorney told the jury of their power and duty to judge the law as well as the facts, and the jury acquitted Zenger. Though not a Supreme Court case, this is a landmark freedom of the press case. People v. Croswell (1804) Harry Croswell was convicted of libel for printing a story critical of President Thomas Jefferson in his newspaper. Alexander Hamilton represented Croswell on appeal and argued that truth should be a defense for libel. Croswell’s conviction was upheld, but the case led New York to change its law to permit truth as a defense. Though not a Supreme Court case, this is a landmark freedom of the press case.

Near v. Minnesota (1931) Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Question Does the Minnesota "gag law" violate the free press provision of the First Amendment? Decision: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

NY Times v. Sullivan (1964) Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

NY Times v. US (1971) In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. Question Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

Branzburg v. Hayes (1972) After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Question Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment? The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.

Nebraska Press Assoc. v. Stuart (1975) A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. Question : Did the judge's order violate the First and Fourteenth Amendments? Yes. The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights. Chief Justice Burger reasoned that"a whole community cannot be restrained from discussing a subject intimately affecting life within it."

Cohen v. Cowles Media Co (1991) Cohen was a campaign associate in the 1982 Minnesota gubernatorial race. He gave court records concerning another party's candidate for lieutenant governor to the St. Paul Pioneer Press and the Minneapolis Star and Tribune. Though he had received a promise of confidentiality from the reporters, the papers identified Cohen in their stories. He was fired as a result. Cohen sued the papers in state court, alleging a breach of contract. At trial, Cohen won compensatory damages and the state appellate court upheld the award. But the Minnesota Supreme Court reversed, ruling that Cohen's claim relied on state "promissory estoppel" law, a law that essentially prevented a promisor from breaking a promise. The court ruled that the First Amendment's free press guarantee prevented promissory estoppel from applying to the newspapers. Question Does the First Amendment bar a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality? No. In a 5-4 opinion delivered by Justice Byron White, the Court held that the First Amendment did not bar a promissory estoppel suit against the press. The Court first affirmed that such a cause of action, though private, triggered the First Amendment's protection. But the Court went on to rule that the state's promissory estoppel law was generally applicable and did not target the press. The law's enforcement against the press thus did not require stricter scrutiny than would its enforcement against other individuals or institutions.

SC Cases Which case had the greatest impact? Why do you think so?

Democracy in America The True Smoking Gun

Are the press and politicians having the kind of interactions/relationship s that the Founding Fathers intended? SUMMARY