Behind the Buzz: Freedom of the Press and Fake News

White House Press Secretary Sarah Huckabee Sanders calls on reporters during a news conference. Chip Somodevilla/Getty Images

Regardless of whether President Donald Trump believes that the media coverage of his administration is fair, there is little that he can do about it. As U.S. Supreme Court Justice Hugo Black wrote in New York Times Co. v. United States, “The press was to serve the governed, not the governors.”

History of Freedom of the Press

The freedom of the press, as established under the First Amendment, is a foundational element of our democracy. It protects the rights of individuals to publish ideas and information without interference from the government.

The importance of a free press cannot be understated: the press reports on the government as well as national and local affairs. Without the free flow of information and ideas, citizens would not be able to make informed decisions about who or what to vote for.

The First Amendment was enacted on December 15, 1791, as part of the Bill of Rights. However, its roots can be traced to the colonial times. Prior to the Revolutionary War, a series of essays, known as Cato’s Letters, were disseminated widely throughout the colonies and published in local newspapers. The essays, written under a pseudonym, were critical of corruption in the British government.

Virginia was the first state to formally recognize the right. The 1776 Virginia Declaration of Rights stated, “The freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.”

When drafting the Bill of Rights, Virginian James Madison would incorporate its language into the First Amendment.

Government vs. the Press

While President Trump is a vocal critic of the press, his animosity pales in comparison to the controversies during the Nixon administration, which went all the way to the U.S. Supreme Court in New York Times v. United States.

President Richard Nixon sought to use his executive authority to prevent The New York Times and The Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy,” which became widely known as the “Pentagon Papers.”

The question before the Court was whether the executive branch’s need to maintain the secrecy of information can trump the First Amendment’s guarantee of freedom of the press.

In a 6-3 decision, the majority of the Supreme Court sided with the newspapers, upholding their right to publish the report.

As Justice Potter Stewart explained, “In absence of governmental checks and balances, the only effective restraint upon executive policy and power in [these two areas] may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government.”

The Supreme Court has also affirmed that reporters can’t be punished merely for reporting the truth, particularly when it comes to public officials. The Court’s decision in New York Times v. Sullivan, which occurred during the height of the civil rights movement, ensures that journalists can do their jobs without fear of libel or defamation lawsuits.

The case centered on a full-page advertisement published in The New York Times. The ad, titled “Heed Their Rising Voices,” was highly critical of Southern officials for their actions in response to a wave of civil rights protests in Montgomery, Alabama.

Although the advertisement did not identify anyone by name, L.B. Sullivan, the Montgomery Public Safety Commissioner, filed suit against the Times. He alleged that he had been libeled by the advertisement, which contained a few minor factual inaccuracies.

The Supreme Court unanimously concluded that the publication was protected under the First Amendment.

In its opinion, the Court noted that it considered the case “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The decision went on to outline a new test for libel cases, commonly known as the “actual malice” standard, which requires public officials to prove that the alleged libelous statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.

Behind the Buzz: Freedom of the Press and Fake News