United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution



First Amendment: Freedom of the Press Access

Judicial Proceedings Important Cases
The Court’s current position is that denying the public access to court room proceedings violates the First Amendment. This was not always the case – in the 1979 case Gannett Co. v. DePasquale, the Court held that pre-trial hearings dealing with suppressing a defendant’s confession could properly be closed to the public and the press. The defendant’s in the trial argued that publicity before the proceedings had jeopardized their right to a fair trial under the 6th and 14th Amendments. The Court agreed, stating that although the 6th Amendment guaranteed a defendant a public trial, it did not necessarily guarantee the public a right to the trial. A trial transcript was still provided afterwards and the Court determined this satisfied the First Amendment.

Since Gannett however, the Court has consistently ruled against closing trials to the public. Decided only a year after Gannett, Richmond Newspapers v. Virginia held that the public and press had a First Amendment right of access to court proceedings. The trial in question in this case had been reversed once and declared a mistrial twice – for the fourth time, the lower court ordered the proceedings to be closed. The plurality opinion rested heavily on the long history of open and public trials, and warned that changing this could damage the First Amendment. The concurring opinion stressed that public access to trials increased fairness and informed the public on the judicial branch of government.

This right of access under the First Amendment also applies to certain pre-trial proceedings. In Press-Enterprise Co. v. Superior Court, the Court held that the public had a First Amendment right of access to voir dire proceedings. The Court emphasized that this was a crucial portion of a trial, and that in court proceedings there was a strong presumption of openness. To overcome this presumption, an overriding interest must be given based on findings, and it must be narrowly tailored. One example of this would be in a voir dire proceeding where potential jurors may have to reveal sensitive information about themselves.

When the press has tried to argue for specific right of access just for the press however, they have largely been rebuffed by the Court. In Seattle Times Co. v. Rhinehart, the Court held that the press did not have any right of access to pre-trial discovery that was under a protective order. The Court specifically said the press would not be allowed access because the general public would not be allowed access. This same reasoning was applied to the press’ attempts to gain special access to prisoners to interview prisoners. In Saxbe v. Washington Post Co., the Court held that the press was not given “special access to information not shared by members of the public generally.”

Gannet Co., Inc. v. DePasquale (1979)

Richmond Newspapers v. Virginia (1980)

Right of Reply in Media Important Cases
Another question of access involves the right of access to the press itself. Should press outlets be required to provide an opportunity for opposing views or a right of reply? This policy used to be codified in the FCC’s “fairness doctrine”, which dictated that broadcast stations must present balanced discussions on public issues, including a right of reply when the honesty or character of an individual is attacked. Although the FCC eventually revoked this doctrine on its own, the Supreme Court upheld it as constitutional. However, this right of access – the right to be provided an opportunity to respond or present the opposing side – the Court expressly chose not to extend to print media.

In the 1969 decision Red Lion Broadcasting Co. v FCC, the Court considered the constitutionality of the fairness doctrine. The Court examined the legislative history of the FCC and the doctrine, and determined that the commission was following the intent of the law and had not exceeded its authority. Focusing on the nature of broadcast radio and television stations, the Court noted that the available number of broadcast channels was limited – justifying government regulation of who could use them. The Court reasoned that the rights of the public, rather than the rights of the broadcaster, were more important when the broadcaster was using such a limited public resource. Therefore the First Amendment did not provide a censorship right to broadcasters using this limited resource. Furthermore, as regulators of the broadcasts, the FCC was in a position to guard against any broadcasters who refused to discuss controversial decisions in trying to avoid the fairness doctrine.

Despite being upheld by the Supreme Court, the fairness doctrine was vehemently opposed by the Reagan administration and was eventually revoked. The ideas behind this doctrine were also found not to apply to print media. Decided five years after Red Lion, Miami Herald v. Tornillo dealt with the right of reply in newspapers. A Florida law required that any political candidate whose character had been attacked must be provided space to reply in the paper that attacked them. The Court struck this down as unconstitutional, stating that this punishes newspapers due to the cost of printing and the necessary exclusion of content that otherwise would have taken that reply’s place. This also interfered with the First Amendment because it intruded on the editorial powers of a newspaper. Although not specifically mentioned, the distinction between Red Lion and Tonillo seems to be the limited nature of broadcast frequencies and channels compared to print media.
 Red Lion Broadcasting Co. v. FCC

Miami Herald v. Tornillo