Freedom of the Press

Free speech and a free press are the cornerstones of a free society. Consequently, the Court has protected ideas stringently and resisted steadfastly prior restraint of the press. In only a few instances has the Court entertained suggestions that prior restraint might, in very limited circumstances, be acceptable. In such cases, the government "thus carries a heavy burden of showing justification for the imposition of such a restraint."

Such a position does not exempt the press from accountability. The Court has made it clear that prosecution for violating security laws and lawsuits for libel, if appropriate to the offense, may be means of holding the press responsible for its publications.

You learned in New York Times v. Sullivan that the press does have some protection from libel charges for public figures. In those cases, libel must be accompanied by actual malice or reckless disregard for the truth.

Since the case of Sheppard V Maxwell, in which Dr. Sam Sheppard received so much pretrial publicity that his right to a fair trial was impeded, limited prior restraint in the form of gag orders has been accepted in order that an accused may receive a fair trial. Gag orders may extend to all trial participants including witnesses, attorneys and other court members, but the Court has not supported gag orders for the press except in very unusual circumstances.

Since the development of the Internet and widespread access by children to the Web, rulings about acceptable content on the Internet have become controversial. Efforts to control what children may access while maintaining a free press and a free society will be the next challenges that the Court and Congress face.