16. Con Law: Freedom of the Press
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PUBLICATION OF TRUTHFUL INFORMATION
- The press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as:
- (1) the speech relates to a matter of public concern,
- (2) the publisher did not obtain it unlawfully or know who did, and
- (3) the original speaker's privacy expectations are low.
ACCESS TO TRIALS
The 1st amendment guarantees the public and press a right to attend criminal trials. But the right may be outweighed by an overriding interest articulated in findings by the trial court. The right probably also applies to civil trials.
Applies to voir dire and pretrial hearings. If a judge were to close pretrial proceedings, he'd have to make specific findings in the record demonstrating (1) that closure was essential to preserve higher or overriding values, and (2) that the closure order was narrowly tailored to serve the higher or overriding value.
If the prosecution seeks to have a pretrial hearing or trial closed to the public and the defendant objects to the closure, there will be a 6th amendment violation if the judge excludes the public and press from the hearing or trial without a clear finding that a closure order was necessary to protect an overriding interest.
A state statute violates the 1st amendment if it requires closure of the trial during testimony of a child victim of a sex offense without a finding of necessity by the trial judge.
The USSC has upheld a state trial court protective order prohibiting a newspaper defendant in a defamation suit from publishing, disseminating, or using information gained through pretrial discovery from plaintiff in any way except where necessary for preparation for trial.
REQUIRING PRESS TO TESTIFY BEFORE GRAND JURIES
Requiring a journalist to appear and testify before state or federal grand juries does not abridge freedom of speech or press. The USSC refused to create a conditional privilege not to reveal confidential sources to a grand jury conducting a good faith inquiry.
Although the 1st amendment protects prisoners, and especially those corresponding with them by mail, from a sweeping program of censorship, it does not permit journalists to insist upon either interviewing specified prisoners or inspecting prison grounds.
BUSINESS REGULATIONS OR TAXES
Press and broadcasting companies can be subject to general business regs or taxes. Thus, a tax applied to both press and non-press businesses will be upheld, even if it has a special impact on a portion of the press or broadcast media, as long as it is not an attempt to interfere with 1st amendment activities. However, no tax or regulation impacting on the press may be based on the content of the publication absent a compelling justification.
MONETARY DAMAGES FOR FAILURE TO KEEP IDENTITY CONFIDENTIAL
When a reporter or publisher promises to keep informant's identity confidential but fails to do so, state contract law or promissory estoppel may allow the source person to recover from th ereporter or publisher.
Radio and television broadcasting may be more closely regulated than the press. The paramount right is the right of viewers and listeners to receive information of public concern, rather than the right of bradcasters to broadcast what they please.
The Court has upheld FCC orders requireing a radio station to offer free broadcasting time to opponents of political candidates or views endorsed by the station and to any person who has been personally attacked in the course of a broadcast, for a reply to the attack.
OTOH, a statute granting political candidates a right to equal space to reply to criticism by the newspaper violates the 1st amendment freedom of press. Decisions respecting size and content of newspapers are forbidden to government.
To promote diversity of information received by the public, the FCC may forbid ownership of a radio or television station by a daily newspaper located in the same community.
Because of a broadcast's ability to invade the privacy of the home, the 1st amendment does not forbid imposing civil sanctions on a broadcaster for airing a full monologue of patenetly offensive sexual or excretory speech even though it is not obscene, at least at those times when children are likely to be listening.
Congress violated the 1st amendment when it forbade any noncommercial educational station receiving a grant from public broadcasting from engaging in editorializing. This was the suppression of speech because of its content. Congress could deny persons receiving the federal funds the right to use those funds for editioral activities, but it could not condition the receipt of those funds upon a promise not to engage in any such speech.
CABLE TELEVISION REGULATION
The scrutiny applied in cable tv cases is somewhere between press and bradcast media.
A content based cable reg will be upheld only if it passes muster under the strict scrutiny test.
The strict standard of 1st amendment scrutiny, rather than the more relaxed standard applicable to broadcasting, applies to internet regulation.
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