How Freedom of the Press Works


journalism is not a crime
A protester holds a poster stating 'Journalism is not a crime' during a demonstration in support of press freedom in Berlin in 2015. A treason investigation had begun against two writers of a news blog which had published domestic security documents. BRITTA PEDERSEN/AFP/Getty Images

In 1971, a RAND Corporation analyst named Daniel Ellsberg surreptitiously released what became known as the Pentagon Papers to The New York Times. The papers revealed a damning history of the United States' involvement in the Vietnam War and essentially showed that the war could never be won with the resources that U.S. allocated to the effort. But more importantly, the Pentagon Papers proved that the government intentionally lied to the American public and to Congress about the conflict [source: Cooper and Roberts].

After the excerpts started appearing in the Times, the Nixon Administration got a court order preventing the publication from printing more of the documents, alleging they violated national security. This was the first time a government had successfully ordered prior restraint (an order to censor news in advance of publication) on national security grounds.

In response, Ellsberg gave copies of the Pentagon Papers to the Washington Post which began printing excerpts as well. The Nixon Administration sought another injunction but was refused. The government appealed and the case went all the way to the Supreme Court. The Court ruled that the prior restraint was unconstitutional, arguing, "Only a free and unrestrained press can effectively expose deception in government...In revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do." [source: Bill of Rights].

New York Times v. United States was one of the biggest victories for the freedom of the press, one of the most overused — and increasingly, misunderstood — phrases in modern society. At its core, the term refers simply to the ability of people to publish materials on paper or through digital media without government interference (i.e., censorship). But even in the U.S., where press freedom is enshrined in the Constitution, there are some limits, which we'll explain later.

In other parts of the world, press freedom is not a given, and in those areas, it's easier for powerful people to take advantage of unknowing citizens. In this article, we'll look at the history of press freedom, how it is deployed in different places and why press freedom is good for the economic development of a country.

History of Freedom of the Press

Benjamin Franklin confers with two colleagues at his printer's shop. Franklin's brother was imprisoned for printing material that offended the British government. GraphicaArtis/Getty Images
Benjamin Franklin confers with two colleagues at his printer's shop. Franklin's brother was imprisoned for printing material that offended the British government. GraphicaArtis/Getty Images

Freedom of speech is anything but a modern concept. For thousands of years, humans have wrestled with the idea of allowing other people to speak their minds as they wish.

In 399 B.C.E., Socrates was put to death for daring to question Roman religious practices. In 1633, Galileo was harassed by the Spanish Inquisition for claiming that the sun did not revolve around the Earth.

Since then freedom of speech has evolved in myriad ways. But it's so vital to modern life that in the ashes of World War II, the United Nations saw fit to enshrine the ideal in the 1948 Declaration of Human Rights: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and to seek, receive, and impart information and ideas through any media regardless of frontiers."

Within this declaration is an implication of a free press. (The UN's resolution 59 takes this even further by saying freedom of information is a fundamental human right.) People ought to be able to express their ideas through any form. However, there's a key difference between freedom of speech and freedom of the press. Freedom of speech means that you can express your opinions without being punished. Freedom of the press is about distribution — you can publish and disseminate news and opinions without fear of intervention and retaliation.

Many countries include press privileges in their governmental framework. Some back it up. Others do not [source: World Democracy Audit]. In the U.S., freedom of the press is enshrined in the First Amendment to the Constitution and reads as follows:

"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" [source: Constitute Project].

"The way this right has been upheld by the Supreme Court has given the United States one of the most robust legal frameworks to protect free speech in the world," says Sarah Repucci, director of global publications at Freedom House, a U.S. organization that advocates and researches political and human rights issues around the world. "Here, the courts regularly strike down any attempts by the government or public figures that challenge the ability of journalists to freely report the news. It is something that Americans should be proud of."

Let Freedom (of the Press) Ring

The trial of John Peter Zenger in New York, 1734. The printer of the New York Weekly Journal was accused of libel, though he was acquitted. The case paved the way for freedom of the press in the United States. Bettman/Getty Images
The trial of John Peter Zenger in New York, 1734. The printer of the New York Weekly Journal was accused of libel, though he was acquitted. The case paved the way for freedom of the press in the United States. Bettman/Getty Images

But the U.S. press wasn't always like that. In Colonial America, the first newspapers were printed under license from British authorities. That is, they were only allowed to print ideas that passed muster from the Crown. Crossing the government could result in imprisonment, as happened to Benjamin Franklin's older brother James when he published material that offended the powers that be [source: Breig].

But around 1720, newspaper publishers realized that colonists in the New World loved it when their editorials skewered their local governors. So, they published ever-more biting commentary. The truth was good for circulation but not so good for aspiring politicians.

Politicians, as they are wont, fought back. In 1735, New York Governor William Crosby had journalist John Peter Zenger arrested for his inflammatory comments (which were, of course, about Crosby). A grand jury declined to charge Zenger, so Crosby later doubled down by accusing Zenger of libel — a written false statement meant to damage a person's reputation. Zenger's lawyers argued that the statement couldn't be considered libel if it was the truth [source: National Park Service].

Zenger languished in jail for a year awaiting trial, and during that time, public interest in the case escalated. In court, the jury found him not guilty, and the incident became a watershed moment for freedom of the press in America. Still, in the years following the case it was common for those in power to prosecute or jail publishers who crossed them in print [sources: U.S. History, New World Encyclopediaj]

Around the same time, English intellectuals coined the term fourth estate for the role of journalism in society. It was perceived as a counterbalance to the other three estates —the wealthy class, religious class and common citizens. It's a means of keeping the other estates honest, or at least accountable for their actions [source: Gill].

Flash forward a few decades to the U.S. Constitution (1787), and you'll notice that the idea of a free press really isn't addressed in this document. It was included the First Amendment of the Bill of Rights, adopted in 1791, which explicitly prohibited government interference in the free speech of its citizens and journalists. The Zenger case helped to pave the way for including freedom of the press in the Bill of Rights.

But why, exactly, is freedom of the press such a contentious issue? Because everyone is (usually) in favor of it until the press prints something they find objectionable, either about themselves or some event. The real test of support for this idea is how someone reacts to information they do not like.

"[Nazi propaganda leader Joseph] Goebbels was in favor of free speech for views he liked. So was Stalin. If you're in favor of free speech, then you're in favor of freedom of speech precisely for views you despise" wrote Noam Chomsky in "Manufacturing Consent: The Political Economy of the Mass Media" [source: Robinson].

Shield Laws and the Media

These days, the media paradigm has shifted away from newspapers, in large part due to 24/7 news cycle on cable TV and the explosion of internet news. As such, says Freedom House's Repucci, the definition of "the press" has changed.

"At Freedom House, we say that the press includes all sources that produce news and commentary," Repucci says. "This can include print, broadcast and online news outlets, as well as social media and communication apps, like WhatsApp, when they are used to gather or disseminate news and commentary for the general public."

That's the concept of the press in a nutshell. It's worth noting that freedom of the press isn't a magic bullet for all of society's ills, and it isn't an all-powerful right. Even in America, there are limits to this freedom and journalists must refrain from specific activities. They can't purposely libel (defame) someone in the media. They can't spread obscenity. And they can't incite people to violence(fighting words) or create a call for illegal activities.

But the U.S. government frequently takes measures to protect journalists' rights. Although there notably are no federal shield laws, 49 states (excepting Wyoming) have some version of these laws, which allow reporters to refuse to reveal confidential sources or other information they use to build their stories. Depending on the state, the shield law varies from almost no protection to nearly absolute protection [source: RCFP].

Shield laws don't provide bulletproof defenses for every situation. If someone breaks the law in sharing information with a reporter, shield laws may not apply, thanks in large part to the Supreme Court's 5-4 decision in Branzburg v. Hayes (1972), which indicated that reporters can be forced to reveal sources if there's evidence of a crime [source: Smolkin].

That's exactly what happened in 2005, when a judge told New York Times reporter Judith Miller that she was required to name the source who revealed the identity of Valerie Plame, an undercover C.I.A. agent. Miller refused — and spent around three months in jail.

You don't have to be a journalist by job title to be protected by a shield law. No matter whether it's print, a blog, TV or a podcast, if you're creating stories to inform the public, American laws protect your right to share information. That means your simple blog may grant you the privilege of shield laws, as long as you aren't knowingly trying to defame someone [sources: EFF, Meyer].

Threats to American Press Freedom

U.S. President Donald Trump speaks with reporters outside the White House on Oct. 7, 2017. During the exchange, he called NBC News, 'Fake News' after it reported tension between Trump and Secretary of State Rex Tillerson. ALEX EDELMAN/AFP/Getty Images
U.S. President Donald Trump speaks with reporters outside the White House on Oct. 7, 2017. During the exchange, he called NBC News, 'Fake News' after it reported tension between Trump and Secretary of State Rex Tillerson. ALEX EDELMAN/AFP/Getty Images

Americans are used to rancorous political debates and the whipsaw struggles between journalists, politicians and other powerbrokers. The actions of people in power are often seen as the biggest threats to press freedom. But in reality, it is financial pressure.

"In the United States, our most severe restrictions on free press come from the economic environment," Repucci says. "As advertising revenues have plummeted, news companies increasingly struggle to conduct in-depth investigations and stay afloat, particular at the local level." Not to mention, if a reporter angers an advertiser, the paper could potentially lose a revenue source. Repeat that process often enough and the paper may not have the money to continue publication.

The end result? Americans still have access to lots of differing viewpoints in the media, but many of these outlets are now owned by large corporations that may massage the news to their liking.

Business interests aren't the only entities that try to control the news — the government, of course, takes aim at reporters, too. "Most prominently, there has been increased pressure on journalists to reveal the identity of their sources when they receive leaked information," says Repucci. "The Obama administration brought more criminal cases against alleged leakers than all previous administrations combined."

The presidency of Donald Trump has taken press hostility to new levels, whether it involves Trump verbally sparring with reporters, calling an unflattering report "fake news" or barring reporters he doesn't like from attending press conferences.

"President Trump's open criticism of the press is a very troubling development," Repucci says. "In a democracy, the press enables the public to learn of abuses of power so that they can hold their leaders to account. President Trump's hostility groundlessly shakes the public's faith in the media, which harms their ability to know what the facts are."

Reporters Without Borders publishes an annual World Press Freedom Index, ranking 180 countries based on how they treat journalists and if the environment for the press is genuinely free.

"The U.S. ranks 43 out of 180 countries based on data collected in 2016. The previous year, the U.S. had ranked 41 out of 180 countries. So, there is a clear downward trend," says Margaux Ewen, the North American advocacy and communications director for Reporters Without Borders. The reason for the lowered ranking? President Obama's flimsy record on press freedom and information access didn't help, and President Trump's verbal attacks on journalists has likely further damaged America's freedom rating [source: Buncombe].

Anyone who is concerned about the state of media in America can use a handy online tool called the U.S. Press Freedom Tracker, which documents incidents of journalists who are arrested and harassed while attempting to do their jobs. One example: During the protests surrounding the building of the North Dakota Access Pipeline in 2016, police arrested numerous reporters on charges such as trespassing and rioting.

Press Freedom Around the World

Journalists arrange pictures of Candido Rios during a demonstration demanding justice at the headquarters of the Ministry of the Interior in Mexico City on Aug. 24, 2017. At the time Rios was the 10th journalist murdered in Mexico for the year. PEDRO PARDO/AFP/Getty Images
Journalists arrange pictures of Candido Rios during a demonstration demanding justice at the headquarters of the Ministry of the Interior in Mexico City on Aug. 24, 2017. At the time Rios was the 10th journalist murdered in Mexico for the year. PEDRO PARDO/AFP/Getty Images

Press freedoms around the globe vary tremendously. According to Freedom House, a country may have a "free," "partly free" or "not free" press. Here's how they break down the world for 2017:

Free Press: Just 13 percent of the world's population lives with a free press, which Freedom House defines as a country "where coverage of political news is robust, the safety of journalists is guaranteed, state intrusion in media affairs is minimal, and the press is not subject to onerous legal or economic pressures." The U.S. would be an example of a country with a free press. Even though politicians may carp at the coverage they receive, no one is actively trying to shut down any media house or kill any journalists. The country with the most press freedom in 2017 was Norway. But countries as diverse as Jamaica, Latvia and Chile also are in this group.

Partly Free: Forty-two percent of the world's population lives in countries with a partly free press, which can mean many things depending on which nation is involved. Journalists may be free to print what they like. However, they may live in fear of being attacked or even murdered for exposing police corruption or drug trafficking (Mexico). Or they may have to deal with the government blocking internet services or halting printing presses in a restive region (India).

Not Free: Another 45 percent of the world's population lives in places where press freedom is severely restricted by the government or is just nonexistent. In Eritrea, a small east African country wedged between Ethiopia and Sudan, journalists have zero rights, and frequently wind up in prison without proper charges or trials.

"In Cambodia, the government regularly beats and jails anyone who opposes it, and it just shut down the most independent newspaper and 15 radio stations," says Freedom House's Repucci. In 2017, North Korea came dead last in Freedom House's annual ranking of countries and press freedoms. No one in the rogue state can report any news except what the government instructs them to say. Foreign journalists who attempt to report from inside the country are assigned "minders" who monitor their every move, including who they speak to.

Is it Really Newsworthy?

Copies of Swedish celebrity magazine Se & Hor (See and Hear), which published topless pictures of Catherine, Duchess of Cambridge taken while on holiday in France, are displayed at a newsstand in Stockholm. She sued for breach of privacy and won. JONATHAN NACKSTRAND/AFP/Getty Images
Copies of Swedish celebrity magazine Se & Hor (See and Hear), which published topless pictures of Catherine, Duchess of Cambridge taken while on holiday in France, are displayed at a newsstand in Stockholm. She sued for breach of privacy and won. JONATHAN NACKSTRAND/AFP/Getty Images

Just because a country has a free press doesn't mean media outlets there can publish whatever they wish. Many governments classify information on the grounds of national security, so, journalists must strike a balance between the public's right to know and the national interest.

In some cases, editors voluntarily self-censor certain types of information. During World War II, for example, many newspapers skipped bloodcurdling battle details to cushion readers from the horrific realities of life on the war front. Reporters massaged their stories to support the war effort, even if it meant twisting the truth. Doing otherwise would have been deemed detrimental to the overall war effort, which touched every aspect of American society [source: PBS].

On the other hand, reporters may intrude into people's private lives and publish information, that while titillating, has no real news value. As an example, in 2012, a photographer used a telephoto lens to capture Kate Middleton, Duchess of Cambridge, sunbathing topless at a private home in southern France. She and her husband Prince William sued for breach of privacy. In late 2017, a French judge agreed, slapped the magazine publisher with a hefty fine and ordered the original images to be returned to the royal couple [source: Amiel].

Content may be newsworthy but still involve risk if an outlet publishes it. In France, the press has many of the same freedoms as America, including the right to publish ideas that are offensive to swaths of the population. But that boldness may come with a price. Charlie Hebdo is a satirical French magazine that's defiantly published cartoons that mocked certain aspects of Islam. The consequences were bloody. Twice (in 2011 and 2015) angry terrorists attacked the company's office. The 2015 attack resulted in the deaths of 12 people, including several of the magazine's editorial staff [sources: Freedom House, Lister].

How Press Freedom Equals Economic Freedom

Freedom of the press is not just a "nice to have" thing. It has a tremendous effect on a country's economic health and its citizens' quality of life.

A 2008 UNESCO report titled "Press Freedom and Development" analyzed the correlations between a country's cultural and economic opportunities and its press freedom. Their findings? "A free press always has a positive influence whether it be on poverty and its different aspects (monetary poverty and access to primary commodities, health and education), on governance or on violence and conflict issues," the report authors wrote. The report found press freedom positively correlated with income level, with government spending on health, and with education enrolment at the primary and secondary levels. Press freedom also correlated positively with lower spending on the military.

When the press holds a government accountable, it makes the government's actions more transparent, creating an environment that's conducive to growing businesses and improving people's standard of living. The press can also inform the government of the wants and needs of the people. If the roads are in bad shape and the newspaper keeps reporting that fact, it may spur action. The reporting could also keep disgruntled citizens from taking matters into their own hands and storming the government buildings. A 2013 study analyzed press freedom and economic growth in 115 countries and found a "bidirectional relationship."

A free press is also good for social services. "No country has a free press and a very high percentage of people with no access to safe water or a high percentage suffering from malnutrition," writes researcher Menelaos Agaloglou in the Africa Report, referring to data in the UNESCO report. "Improvement in press freedom is associated with a drop in infant mortality and an increase in life expectancy at birth as well as general increase on the health status of the population. By allowing debate and different opinions to be heard the country becomes more stable, less violent and more democratic."

Author's Note: How Freedom of the Press Works

I will not be jailed for writing this story (I hope) even though I included one or two rather unflattering comments about America's current commander-in-chief. It's one of the glorious benefits of a free society in which self-expression can run wild with few fears of reprisals. Hopefully, someday, the rest of humanity will be able to share their thoughts just as freely without fear of losing their livelihoods ... or their lives.

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