The First Amendment is the cornerstone of journalistic freedom in the United States. It states: “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.”
Initially, the First Amendment applied only to laws enacted by Congress. However, over time, the courts have interpreted its provisions more broadly to encompass any form of government interference. The First Amendment is relatively distinctive in that few countries offer such unequivocal statements of support for journalistic work within their legal frameworks.
Shortly after the U.S. gained independence from Britain, Thomas Jefferson—who was then an ambassador to France—and James Madison corresponded about the need for a Bill of Rights. Madison, in particular, championed the document because he believed it would enable independent courts of justice to protect individual rights and educate citizens about their rights and responsibilities within a democratic republic.
It is not accidental that the First Amendment leads the Bill of Rights. Alongside Jefferson, Madison played a significant role in getting the state of Virginia to adopt its Statute for Religious Freedom, and Madison consistently championed religious and political liberty throughout his life. Notably, Madison pushed to change words like ‘should’ or ‘ought,’ which were used in earlier state declarations of rights, with less equivocal language like ‘shall.’
While Madison strongly pushed to have the First Amendment apply to both the federal government and the states, legislators could only agree on a federal application. Thus, it was not until the Fourteenth Amendment in 1868—by which time the American Civil War had taken place and the country’s views on federalism had shifted—that the First Amendment would be consistently applied at the state level, too. As such, for much of the first century of the United States' existence, the legal protections offered to journalists on key aspects of libel, prior restraint, and other First Amendment issues varied from state to state.
Despite the First Amendment’s unequivocal language, Congress (and state legislatures) have passed a number of laws that abridge the freedom of speech or of the press. Put another way, in trying to promote other ideals, such as national unity and contemporary notions of decency, legislative bodies adopted laws that infringe on speech and press freedoms. (Cynics would argue that politicians passed some of those laws for less admirable reasons, such as to protect corrupt public officials from the searching eyes of journalists.)
In instances where the First Amendment clashes with other interests, the U.S. Supreme Court is often the final arbiter regarding what constitutes an acceptable infringement. Since 1804, there have been nearly 900 major rulings by the U.S. Supreme Court and other courts that directly involve First Amendment freedoms. The 20th century was a particularly busy period for the Supreme Court, and a number of its decisions expanded speech and press rights.
Some of the First Amendment issues most closely related to journalism that have been tested in court include access to information and places, anonymous speech and protection of sources, copyright, free association, incitement, prior restraint, privacy, and the publication of confidential information. Put another way, much of the guidance about which journalistic activities are legally permissible come not only from laws passed by the country’s legislative branch but also from interpretations of the First Amendment by its judicial branch.
A central theme in judicial decisions about the protections and limitations of the First Amendment is that political expression receives greater legal protection than commercial expression. Put another way, the courts have long recognized the importance of a so-called ‘marketplace of ideas,’ wherein ideas should be allowed to freely compete with one another because competition will allow the best ideas to emerge victorious. That, in turn, should result in a better-functioning democracy under such thinking. In order to permit such competition, the thinking goes, restrictions on communication—and political communication in particular—should be limited.
While there are significant limitations to that marketplace metaphor—for example, some people have a louder voice than others because of their position in society, and people are not fully rational beings—it has nevertheless resulted in the courts holding public affairs journalism and political opinion pieces in high regard because they see such work as being central to promoting the founding ideals of sovereignty and self-governance. Moreover, U.S. courts have on many occasions explicitly referenced the value and importance of promoting a vibrant journalism ecosystem that can serve as a ‘fourth branch’ of government and as a watchdog against corruption and public misdeeds. For example, former Supreme Court Justice Hugo Black famously wrote in 1971 that “only a free and unrestrained press can effectively expose deception in government … and to prevent any part of the government from deceiving the people.”
As such, the courts will often weigh the public benefit of a news article or broadcast segment against the harms it could cause to an individual’s privacy or even the country’s national security. This does not at all grant journalists or journalistic outlets a blanket immunity against legal liability but it does tend to offer them greater protection than might be afforded to other forms of communication, such as advertising and entertainment (provided such advertisement or entertainment is not itself political in nature). For example, restrictions on fraudulent advertising are less likely to be seen as violating the First Amendment than restrictions on political editorials that contain false information.
In short, although the First Amendment does not forbid legislators from regulating journalists and journalism, it is the cornerstone for most legal defenses of U.S. journalists and their activities. It also grants journalists in the U.S. stronger protections against both government intervention and civil charges from fellow citizens than journalists in most other countries tend to receive. Its placement at the top of the U.S. Bill of Rights also signals that journalism and free expression lie at the heart of the so-called American Experiment.
The ideals behind the First Amendment stand at the core of the founding documents of both the United States of America and its member states.
The First Amendment is the cornerstone for most legal defenses by journalists against a range of different charges.
The Supreme Court is often the final arbiter of disputes between the freedom of expression and other national interests.
The Supreme Court has repeatedly privileged expression about political and public affairs over commercial expression when adjudicating First Amendment challenges.