# Free speach; freedom of the press

**URL:** <https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263>\
**Category:** Great Debates\
**Created:** [February 13, 2006, 11:56am UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263 "2006-02-13T11:56:36Z")\
**Posts on this page:** 6\
**Page:** 1

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**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\
**Post date:** [February 13, 2006, 11:56am UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/1 "2006-02-13T11:56:36Z")

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I’m sure this will end up as a debate but I’m starting by asking for information …

What is the current status of the right to free speach? Originaly was it more than a reaction to the liklihood that one would be thrown in prison if he spoke out against the government? I know the protections have expanded beyond that… does free speach now extend to certain protections against reaction taken by non-government entities?

Is freedom of the press more than a specific free speach right? Is complicity in the commission of a crime a freedom of the press right? If so, who qualifies for that?

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**Author:** ![Crotalus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crotalus/32/41_2.png) [@Crotalus](https://boards.straightdope.com/u/Crotalus)\
**Post date:** [February 13, 2006, 1:03pm UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/2 "2006-02-13T13:03:23Z")

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Freedom of speech, if we’re talking in terms of the United States, is a protection against federal laws curtailing speech. The first amendment reads:

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> 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.

The fourteenth amendment, if I understand this correctly, applies this protection to state laws. It says, in part:

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> No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

I don’t believe that this has been interpreted to protect against adverse reactions to speech by non-government entities.

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**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\
**Post date:** [February 13, 2006, 1:06pm UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/3 "2006-02-13T13:06:20Z")

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From the [ACLU fact sheet](http://www.aclu.org/freespeech/gen/21179pub20051031.html) on freedom of expression:

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> Freedom of speech, of the press, of association, of assembly and petition – this set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. The Supreme Court has written that this freedom is “the matrix, the indispensable condition of nearly every other form of freedom.” Without it, other fundamental rights, like the right to vote, would wither and die. […]
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> During our nation’s early era, the courts were almost universally hostile to political minorities’ First Amendment rights; free speech issues did not even reach the Supreme Court until 1919 when, in Schenck v. U.S. , the Court unanimously upheld the conviction of a Socialist Party member for mailing anti-anti-war leaflets to draft-age men. A turning point occurred a few months later in Abrams v. U.S. Although the defendant’s conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law. Justices Oliver Wendell Holmes and Louis D. Brandeis argued speech could only be punished if it presented “a clear and present danger” of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the “clear and present danger test.” […]
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> Finally, in 1969, in Brandenberg v. Ohio , the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce , “imminent lawless action.” Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today. […]
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> Government can limit some protected speech by imposing “time, place and manner” restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination – and that is unconstitutional.
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> When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people. […]

So the answers to your questions seem to be, more or less:

- Originally, the First Amendment right to free speech **wasn’t** always interpreted as providing protection for speaking out against the government. Politically unpopular views that could be characterized as “seditious”, for example, used to be legally punishable. Not anymore.

- As for “protections against reaction taken by non-government entities”: The usual laws against violence etc. apply to reactions against speech; for example, nobody’s allowed to punch you because he doesn’t like the opinion you just expressed. And a few states have laws protecting employees’ right to political speech outside the workplace—e.g., in California or New York, an employer can’t fire you just because s/he doesn’t like your off-hours political activism. However, in Tennessee or Florida, s/he can, because these are state-level laws. The **federal** constitutional right to free expression doesn’t restrict private employers from censoring employees’ speech.

- “Is freedom of the press more than a specific free speach right?” Not as far as I know; it’s just one of the forms of free expression guaranteed by the First Amendment.

- “Is complicity in the commission of a crime a freedom of the press right?” What sort of crime? Debate rages over whether the criminalization of “contempt of court”, e.g., for refusing to reveal the identity of news sources, infringes freedom of the press. But absent a Supreme Court decision specifically saying so, the courts will keep on sending people to jail for contempt of court (witness the recent Judith Miller case).

And I can’t think of any other kind of crime that one could reasonably argue is protected by “freedom of the press”. Libel, maybe? What kind of crime are you talking about here?

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**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\
**Post date:** [February 13, 2006, 8:09pm UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/4 "2006-02-13T20:09:16Z")

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> [@Kimstu](#):
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> And I can’t think of any other kind of crime that one could reasonably argue is protected by “freedom of the press”. Libel, maybe? What kind of crime are you talking about here?

Libel is a tort, not a crime.

Perhaps **What the … !!!** is talking about publication of classified information by a media organization. (See this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=352048](http://boards.straightdope.com/sdmb/showthread.php?t=352048)) If so, the applicable standard (applicable to the media, not the “leaker”) was enunciated, if you can call it that, by the Supreme Court in the “Pentagon Papers” case – [http://en.wikipedia.org/wiki/Pentagon\_papers:](http://en.wikipedia.org/wiki/Pentagon_papers:)

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> When the Times began publishing its series, President Nixon became incensed. His words to Secretary of State Henry Kissinger that day included “people have gotta be put to the torch for this sort of thing…” and “let’s get the son-of-a-bitch in jail.” [3] After failing to get the Times to voluntarily stop publishing, Attorney General John Mitchell and President Nixon requested and obtained a federal court injunction that the Times cease the publication of excerpts. This was the first time in U.S. history that any executive successfully obtained a judicial prior restraint against publication for national security reasons. The Times appealed the injunction that was issued, and the case began (quickly) working its way through the court system.
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> On June 18th, the Washington Post, which had separately obtained (the same portion of) the Papers from Ellsberg, began publishing its own series of articles. That day the Post received a call from the Assistant Attorney General, William Rehnquist, asking them to stop publishing the documents. When the Post refused, the Justice Department sought another injunction. The U.S. District court judge refused, and the government appealed.
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> On June 26 the Supreme Court of the United States agreed to take both cases, merging them into the case New York Times Co. v. U.S. ( 403 US 713[4]). On June 30th, the Supreme Court held in a 6-3 decision that the injunctions were unconstitutional prior restraints and that the government had not met the heavy burden of proof required for prior restraint. The justices wrote nine separate opinions, disagreeing on significant substantive issues. While it was a victory for the First Amendment, many felt it was a lukewarm victory at best, offering little protection for future publishers when claims of national security are at stake.
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> Thomas Tedford and Dale Herbeck summed up the reaction of editors and publishers at the time:
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> “As the press rooms of the Times and the Post began to hum to the lifting of the censorship order, the journalists of America pondered with grave concern the fact that for fifteen days the ‘free press’ of the nation had been prevented from publishing an important document and for their troubles had been given an inconclusive and uninspiring ‘burden-of-proof’ decision by a sharply divided Supreme Court. There was relief, but no great rejoicing, in the editorial offices of America’s publishers and broadcasters.” (Tedford and Herbeck, pp. 225–6 [5])

Text of the decision, with introduction: [http://usinfo.state.gov/usa/infousa/facts/democrac/48.htm](http://usinfo.state.gov/usa/infousa/facts/democrac/48.htm)

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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [February 13, 2006, 8:25pm UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/5 "2006-02-13T20:25:41Z")

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> [@Crotalus](#):
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> The fourteenth amendment, if I understand this correctly, applies this protection to state laws. It says, in part:
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> > No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

Yes and no. Yes, the Fourteenth Amendment does this. No, not by way of the Privileges and Immunities clause. A bunch of New Orleans butchers are to blame.

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**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\
**Post date:** [February 14, 2006, 7:54pm UTC](https://boards.straightdope.com/t/free-speach-freedom-of-the-press/344263/6 "2006-02-14T19:54:11Z")

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> [@Bricker](#):
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> Yes and no. Yes, the Fourteenth Amendment does this. No, not by way of the Privileges and Immunities clause. A bunch of New Orleans butchers are to blame.

Actually, the Slaughterhouse Cases ([http://en.wikipedia.org/wiki/Slaughterhouse\_Cases](http://en.wikipedia.org/wiki/Slaughterhouse_Cases)) reached the contrary conclusion – that the 14th Amendment should be read narrowly, and that the “privileges and immunities” affected only the rights of national, not state, citizenship.

It was in _Gitlow v. New York_ ([http://en.wikipedia.org/wiki/Gitlow\_v.\_New\_York](http://en.wikipedia.org/wiki/Gitlow_v._New_York)) that SCOTUS first ruled that the 14th amendment “incorporates” some provisions of the Bill of Rights and makes them binding on state as well as federal government. By way of the “due process” clause, not the “privileges and immunities” clause.