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Freedom of Expression: Is There a Difference Between Speech and Press

Utilization of the single word “expression” to reach speech, press, petition, association, and the like, raises the central question of whether the free speech clause and the free press clause are coextensive; does one perhaps reach where the other does not? It has[p.1027]been much debated, for example, whether the “institutional press” may assert or be entitled to greater freedom from governmental regulations or restrictions than are non–press individuals, groups, or associations. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.”32 But as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.”33

Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or to give the press access to information that the public generally does not have.34 Nor in many respects is the press entitled to treatment different in kind than the treatment any other member of the public may be subjected to.35 “Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects.”36 Yet, it does seem clear that to some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental “sensitivity,” to use Justice Stewart’s word.37 What difference such[p.1028]a recognized “sensitivity” might make in deciding cases is difficult to say.

The most interesting possibility lies in the area of First Amendment protection of good faith defamation.38 Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from liability for libel or slander.”39 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,40 but the Court’s decision that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state regulations causes the evaporation of the supposed “conflict” between speech clause protection of individuals only and of press clause protection of press corporations as well as of press individuals.41 The issue, the Court wrote, was not what constitutional rights corporations have but whether the speech which is being restricted is expression that the First Amendment protects because of its societal significance. Because the speech concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self– expression as a worthy goal, it also and as important affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti’s emphasis upon the nature of the contested speech being political, it is clear that the same principle,[p.1029]the right of the public to receive information, governs nonpolitical, corporate speech.42

With some qualifications, therefore, it is submitted that the speech and press clauses may be analyzed under an umbrella “expression” standard, with little, if any, hazard of missing significant doctrinal differences.

The Doctrine of Prior Restraint

“[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.”43 “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”44 Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”45 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license that which for a long time could be published only with a license.46

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,47 in which a five–to–four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. While the dissenters maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without advance approval of an executive official,48 the majority deemed the difference of no consequence, since in order to avoid a contempt citation the newspaper would have to clear future publications in advance with the[p.1030]judge.49 Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”50 The Court did not undertake to explore the kinds of restrictions to which the term “prior restraint” would apply nor to do more than assert that only in “exceptional circumstances” would prior restraint be permissible.51 Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them, and as it voided other restrictions on First Amendment rights.52 The doctrine that generally emerged was that permit systems—prior licensing, if you will—were constitutionally valid so long as the discretion of the issuing official was limited to questions of times, places, and manners.53 The most recent Court encounter with the doctrine in the[p.1031]national security area occurred when the Government attempted to enjoin press publication of classified documents pertaining to the Vietnam War54 and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that in some circumstances prior restraint of publication would be constitutional.55 But no cohesive doctrine relating to the subject, its applications, and its exceptions has yet emerged.


32 Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Stewart initiated the debate in a speech, subsequently reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
33 Id. at 798. The Chief Justice’s conclusion was that the institutional press had no special privilege as the press.
34 Houchins v. KQED, 438 U.S. 1 (1978) , and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974) ; Pell v. Procunier, 417 U.S. 817 (1974) ; Nixon v. Warner Communications, 435 U.S. 589 (1978) . The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) ; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) .
35 Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).
36 Cohen v. Cowles Media, 501 U.S. 663, 669 (1991) .
37 E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) ; Landmark Communications v. Virginia, 435 U.S. 829 (1978) . See also Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978) , and id. at 568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) , imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582–84 (Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). On the other hand, the Court has also suggested that the press is protected in order to promote and to protect the exercise of free speech in the society, including the receipt of information by the people. E.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966) ; CBS v. FCC, 453 U.S. 367, 394–95 (1981) .
38 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . See infra, pp.1136–45.
39 Stewart, Or of the Press, 26 Hastings, L. J. 631, 633–35 (1975).
40 In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979) , the Court noted that it has never decided whether the Times standard applies to an individual defendant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) , intimations of such leanings by the Court.
41 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) . The decision, addressing a question not theretofore confronted, was 5–to–4. Justice Rehnquist would have recognized no protected First Amendment rights of corporations because, as entities entirely the creation of state law, they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices White, Brennan, and Marshall thought the First Amendment implicated but not dispositive because of the state interests asserted. Id. at 802. Previous decisions recognizing corporate free speech had involved either press corporations, id. at 781–83; and see id. at 795 (Chief Justice Burger concurring), or corporations organized especially to promote the ideological and associational interests of their members. E.g., NAACP v. Button, 371 U.S. 415 (1963) .
42 Commercial speech when engaged in by a corporation is subject to the same standards of protection as when natural persons engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533–35 (1980) . Nor does the status of a corporation as a government–regulated monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566–68 (1980) .
43 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) .
44 Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963) .
45 Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) ; New York Times Co. v. United States, 403 U.S. 713, 714 (1971) .
46 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931) : Lovell v. Griffin, 303 U.S. 444, 451 (1938) .
47 283 U.S. 697 (1931) .
48 Id. at 723, 733–36 (Justice Butler dissenting).
49 Id. at 712–13.
50 Id. at 719–20.
51 Id. at 715–16.
52 E.g., Lovell v. Griffin, 303 U.S. 444 (1938) ; Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) ; Staub v. City of Baxley, 355 U.S. 313 (1958) . For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943) ; Follett v. McCormick, 321 U.S. 573 (1944) .
53 Cox v. New Hampshire, 312 U.S. 569 (1941) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) . In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) , the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought–for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) , the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).
The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) , and seems to explain the Court’s action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978) . But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).
54 New York Times Co. v. United States, 403 U.S. 713 (1971) . The vote was six to three, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion.
55 The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730, while Justice White did not endorse any specific phrasing of a standard. Id. at 730–733. Justice Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13.
The same issues were raised in United States v. Progressive, Inc., 467 F. Supp. 990 (W.D.Wis. 1979), in which the United States obtained an injunction prohibiting publication of an article it claimed would reveal information about nuclear weapons, thus increasing the dangers of nuclear proliferation. The injunction was lifted when the same information was published elsewhere and thus no appellate review was had of the order.
With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980) ; Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975) ; United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972) .
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