Regulating the News Media
Freedom of the press and an independent media are important dimensions of a liberal society and a necessary part of a healthy democracy. “No government ought to be without censors,” said Thomas Jefferson, “and where the press is free, no one ever will.”[1] What does it mean to have a free news media? What regulations limit what media can do?
The Constitution gives Congress responsibility for promoting the general welfare. While it is difficult to define what this broad dictate means, Congress has used it to protect citizens from media content it deems inappropriate. Although the media are independent participants in the U.S. political system, their liberties are not absolute and there are rules they must follow.
MEDIA AND THE FIRST AMENDMENT
The U.S. Constitution was written in secrecy. Journalists were neither invited to watch the drafting, nor did the framers talk to the press about their disagreements and decisions. Once it was finished, however, the Constitution was released to the public and almost all newspapers printed it. Newspaper editors also published commentary and opinion about the new document and the form of government it proposed. Early support for the Constitution was strong, and Anti-Federalists (who opposed it) argued that their concerns were not properly covered by the press. The eventual printing of The Federalist Papers, and the lesser-known Anti-Federalist Papers, fueled the argument that the press was vital to American democracy. It was also clear the press had the ability to affect public opinion and therefore public policy.[2]
The approval of the First Amendment, as a part of the Bill of Rights, demonstrated the framers’ belief that a free and vital press was important enough to protect. It said:
“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.”
This amendment serves as the basis for the political freedoms of the United States, and freedom of the press plays a strong role in keeping democracy healthy. Without it, the press would not be free to alert citizens to government abuses and corruption. In fact, one of New York’s first newspapers, the New York Weekly Journal, began under John Peter Zenger in 1733 with the goal of routing corruption in the colonial government. After the colonial governor, William Cosby, had Zenger arrested and charged with seditious libel in 1735, his lawyers successfully defended his case and Zenger was found not guilty, affirming the importance of a free press in the colonies.
The media act as informants and messengers, providing the means for citizens to become informed and serving as a venue for citizens to announce plans to assemble and protest actions by their government. Yet the government must ensure the media are acting in good faith and not abusing their power. Like the other First Amendment liberties, freedom of the press is not absolute. The media have limitations on their freedom to publish and broadcast.
Slander and Libel
First, the media do not have the right to commit slander, speak false information with an intent to harm a person or entity, or libel, print false information with an intent to harm a person or entity. These acts constitute defamation of character that can cause a loss of reputation and income. The media do not have the right to free speech in cases of libel and slander because the information is known to be false. Yet on a weekly basis, newspapers and magazines print stories that are negative and harmful. How can they do this and not be sued?
First, libel and slander occur only in cases where false information is presented as fact. When editors or columnists write opinions, they are protected from many of the libel and slander provisions because they are not claiming their statements are facts. Second, it is up to the defamed individual or company to bring a lawsuit against the media outlet, and the courts have different standards depending on whether the claimant is a private or public figure. A public figure must show that the publisher or broadcaster acted in “reckless disregard” when submitting information as truth or that the author’s intent was malicious. This test goes back to the New York Times v. Sullivan (1964) case, in which a police commissioner in Alabama sued over inaccurate statements in a newspaper advertisement.[3] Because the commissioner was a public figure, the U.S. Supreme Court applied a stringent test of malice to determine whether the advertisement was libel; the court deemed it was not.
A private individual must make one of the above arguments or argue that the author was negligent in not making sure the information was accurate before publishing it. For this reason, newspapers and magazines are less likely to stray from hard facts when covering private individuals, yet they can be willing to stretch the facts when writing about politicians, celebrities, or public figures. But even stretching the truth can be costly for a publisher. In 2010, Star magazine published a headline, “Addiction Nightmare: Katie Drug Shocker,” leading readers to believe actress Katie Holmes was taking drugs. While the article in the magazine focuses on the addictive quality of Scientology sessions rather than drugs, the implication and the headline were different. Because drugs cause people to act erratically, directors might be less inclined to hire Holmes if she were addicted to drugs. Thus Holmes could argue that she had lost opportunity and income from the headline. While the publisher initially declined to correct the story, Holmes filed a $50 million lawsuit, and Star’s parent company American Media, Inc. eventually settled. Star printed an apology and made a donation to a charity on Holmes’ behalf.[4]
Classified Material
The media have only a limited right to publish material the government says is classified. If a newspaper or media outlet obtains classified material, or if a journalist is witness to information that is classified, the government may request certain material be redacted or removed from the article. In many instances, government officials and former employees give journalists classified paperwork in an effort to bring public awareness to a problem. If the journalist calls the White House or Pentagon for quotations on a classified topic, the president may order the newspaper to stop publication in the interest of national security. The courts are then asked to rule on what is censored and what can be printed.
The line between the people’s right to know and national security is not always clear. In 1971, the Supreme Court heard the Pentagon Papers case, in which the U.S. government sued the New York Times and the Washington Post to stop the release of information from a classified study of the Vietnam War. The Supreme Court ruled that while the government can impose prior restraint on the media, meaning the government can prevent the publication of information, that right is very limited. The court gave the newspapers the right to publish much of the study, but revelation of troop movements and the names of undercover operatives are some of the few approved reasons for which the government can stop publication or reporting.
During the second Persian Gulf War, FOX News reporter Geraldo Rivera convinced the military to embed him with a U.S. Army unit in Iraq to provide live coverage of its day-to-day activities. During one of the reports he filed while traveling with the 101st Airborne Division, Rivera had his camera operator record him drawing a map in the sand, showing where his unit was and using Baghdad as a reference point. Rivera then discussed where the unit would go next. Rivera was immediately removed from the unit and escorted from Iraq.[5] The military exercised its right to maintain secrecy over troop movements, stating that Rivera’s reporting had given away troop locations and compromised the safety of the unit. Rivera’s future transmissions and reporting were censored until he was away from the unit.
MEDIA AND TRANSPARENCY
The press has had some assistance in performing its muckraking duty. Laws that mandate federal and many state government proceedings and meeting documents be made available to the public are called sunshine laws. Proponents believe that open disagreements allow democracy to flourish and darkness allows corruption to occur. Opponents argue that some documents and policies are sensitive, and that the sunshine laws can inhibit policymaking.
While some documents may be classified due to national or state security, governments are encouraged to limit the over-classification of documents. The primary legal example for sunshine laws is the Freedom of Information Act (FOIA), passed in 1966 and signed by President Lyndon B. Johnson. The act requires the executive branch of the U.S. government to provide information requested by citizens and was intended to increase openness in the executive branch, which had been criticized for hiding information. Citizens wishing to obtain information may request documents from the appropriate agencies, and agencies may charge fees if the collection and copying of the requested documentation requires time and labor.[6] FOIA also identifies data that does not need to be disclosed, such as human resource and medical records, national defense records, and material provided by confidential sources, to name a few.[7] Not all presidents have embraced this openness, however. President Ronald Reagan, in 1981, exempted the CIA and FBI from FOIA requests.[8] Information requests have increased significantly in recent years, with U.S. agencies receiving over 700,000 requests in 2014, many directed to the Departments of State and Defense, thus creating a backlog.[9] As FOIA requests have become institutionalized across the levels of the U.S. government, one challenge is the work created in responding to those requests.[10] For example, at the University of Oklahoma, two staff in the university counsel’s office spend most of their time responding to FOIA requests about the university.
Link to Learning
Want to request a government document but unsure where to start? If the agency is a part of the U.S. government, the Freedom of Information Act portal will help you out.
Few people file requests for information because most assume the media will find and report on important problems. And many people, including the press, assume the government, including the White House, sufficiently answers questions and provides information about government actions and policies. This expectation is not new. During the Civil War, journalists expected to have access to those representing the government, including the military. But William Tecumseh Sherman, a Union general, maintained distance between the press and his military. Following the publication of material Sherman believed to be protected by government censorship, a journalist was arrested and nearly put to death. The event spurred the creation of accreditation for journalists, which meant a journalist must be approved to cover the White House and the military before entering a controlled area. All accredited journalists also need approval by military field commanders before coming near a military zone.[11]
To cover war up close, more journalists are asking to travel with troops during armed conflict. In 2003, George W. Bush’s administration decided to allow more journalists in the field, hoping the concession would reduce friction between the military and the press. The U.S. Department of Defense placed fifty-eight journalists in a media boot camp to prepare them to be embedded with military regiments in Iraq. Although the increase in embedded journalists resulted in substantial in-depth coverage, many journalists felt their colleagues performed poorly, acting as celebrities rather than reporters.[12]
The line between journalists’ expectation of openness and the government’s willingness to be open has continued to be a point of contention. Some administrations use the media to increase public support during times of war, as Woodrow Wilson did in World War I. Other presidents limit the media in order to limit dissent. In 1990, during the first Persian Gulf War, journalists received all publication material from the military in a prepackaged and staged manner. Access to Dover, the air force base that receives coffins of U.S. soldiers who die overseas, was closed. Journalists accused George H. W. Bush’s administration of limiting access and forcing them to produce bad pieces. The White House believed it controlled the message.[13] The ban was later lifted.
In his 2008 presidential run, Barack Obama promised to run a transparent White House.[14] Yet once in office, he found that transparency makes it difficult to get work done, and so he limited access and questions. In his first year in office, George W. Bush, who was criticized by Obama as having a closed government, gave 147 question-and-answer sessions with journalists, while Obama gave only 46. Even Helen Thomas, a long-time liberal White House press correspondent, said the Obama administration tried to control both information and journalists.[15]
The Trump administration had an especially bumpy relationship with the news media. In part, this had to do with Trump’s penchant for using Twitter, instead of news briefings, to get his thoughts out to the public. The repeated line from the former president that news media could not be trusted, which he called “fake news,” added insult to injury. The prickly relationship also resulted from reduced use of traditional press gaggles and excluding some media outlets, such as CNN, when tempers flared.
While some may have expected the Biden administration to undertake a complete reversal from the Trump White House, the first few months demonstrated that presidents’ overall relationships with the press may have evolved. A number of news outlets and media commentators noted the lack of a formal press conference for months after Biden took office. However, he did frequently provide comments and answer questions during other occasions.[16]
Because White House limitations on the press are not unusual, many journalists rely on confidential sources. In 1972, under the cloak of anonymity, the associate director of the Federal Bureau of Investigation, Mark Felt, became a news source for Bob Woodward and Carl Bernstein, political reporters at the Washington Post. Felt provided information about a number of potential stories and was Woodward’s main source for information about President Richard Nixon’s involvement in a series of illegal activities, including the break-in at Democratic Party headquarters in Washington’s Watergate office complex. The information eventually led to Nixon’s resignation and the indictment of sixty-nine people in his administration. Felt was nicknamed “Deep Throat,” and the journalists kept his identity secret until 2005.[17]
The practice of granting anonymity to sources is sometimes referred to as reporter’s privilege. Fueled by the First Amendment’s protection of the press, journalists have long offered to keep sources confidential to protect them from government prosecution. To illustrate, as part of the investigation into the outing of Valerie Plame as a CIA officer, New York Times reporter Judith Miller was jailed for refusing to reveal “Scooter” Libby, Vice President Dick Cheney’s chief of staff, as her confidential government source.[18] Reporter’s privilege has increased the number of instances in which whistleblowers and government employees have given journalists tips or documents to prompt investigation into questionable government practices. Edward Snowden’s 2013 leak to the press regarding the U.S. government’s massive internal surveillance and tapping program was one such case.
In 1972, however, the Supreme Court determined that journalists are not exempt from subpoenas and that courts could force testimony to name a confidential source. Journalists who conceal a source and thereby protect that source from being properly tried for a crime may spend time in jail for contempt of court. In the case of Branzburg v. Hayes (1972), three journalists were placed in contempt of court for refusing to divulge sources.[19] The journalists appealed to the Supreme Court. In a 5–4 decision, the justices determined that freedom of the press did not extend to the confidentiality of sources. A concurring opinion did state that the case should be seen as a limited ruling, however. If the government needed to know a source due to a criminal trial, it could pursue the name of that source.[20]
More recently, the Supreme Court refused to hear an appeal from New York Times journalist James Risen, who was subpoenaed and ordered to name a confidential source who had provided details about a U.S. government mission designed to harm Iran’s nuclear arms program. Risen was finally released from the subpoena, but the battle took seven years and the government eventually collected enough other evidence to make his testimony less crucial to the case.[21] Overall, the transparency of the government is affected more by the executive currently holding office than by the First Amendment.
Access for free at https://openstax.org/books/american-government-3e/pages/1-introduction; Section URL: https://openstax.org/books/american-government-3e/pages/8-3-regulating-the-media
- Anthony R. Fellow. 2013. American Media History. Boston: Cengage, page 67. ↵
- Fellow. American Media History. ↵
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964). ↵
- Jill Serjeant, “Katie Holmes Settles Libel Suit on Drugs Claim,” Reuters, 28 April 2011, http://www.reuters.com/article/2011/04/28/us-katieholmes-idUSTRE73Q7K620110428. ↵
- Christ Plante, “Military Kicks Geraldo Out of Iraq,” CNN, 31 March 2003. ↵
- “The Freedom of Information Act, 5 U.S.C.”, The United States Department of Justice, http://www.justice.gov/oip/blog/foia-update-freedom-information-act-5-usc-sect-552-amended-public-law-no-104-231-110-stat (September 7, 2015). ↵
- Ibid. ↵
- Fellow. American Media History. ↵
- “What is FOIA?” The Department of Justice, http://www.foia.gov/index.html (September 8, 2015). ↵
- Courtney Kueppers, "The Flip Side of FOIA: Mountains of Paper, Small Government Staffs and — for Some — an Attitude Problem," Chicago Tribune, 9 April 2021. https://www.chicagotribune.com/news/ct-foia-illinois-how-it-works-20210409-g3km5bma4rgn7ka4hkbswmvs7i-story.html. ↵
- Fellow. American Media History. ↵
- Ibid. ↵
- Ibid. ↵
- Christopher Beam, “The TMI President,” Slate, 12 November 2008. ↵
- Fellow. American Media History, 388. ↵
- Manuel Roig-Franzia and Sarah Ellison, "A History of the Trump War on Media — the Obsession Not Even Coronavirus Could Stop," The Washington Post, 29 March 2020, https://www.washingtonpost.com/lifestyle/media/a-history-of-the-trump-war-on-media--the-obsession-not-even-coronavirus-could-stop/2020/03/28/71bb21d0-f433-11e9-8cf0-4cc99f74d127_story.html. ↵
- Bob Woodward, “How Mark Felt Became ‘Deep Throat,’” The Washington Post, 20 June 2005. ↵
- Don Van Natta Jr., Adam Liptak, and Clifford J. Levy, “The Miller Case: A Notebook, a Cause, a Jail Cell and a Deal,” The New York Times, 16 October 2005. ↵
- Branzburg v. Hayes, 408 U.S. 665 (1972). ↵
- Adam Liptak, “A Justice’s Scribbles on Journalists Rights,” New York Times, 7 October 2007. ↵
- Matt Apuzzo, “Times Reporter Will Not Be Called to Testify in Leak,” New York Times, 12 January 2015. ↵
