“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.” –First Amendment (source: Constitute Project)
This site is dedicated to discussing freedom of journalism, which differs from freedom of the press. A free press, however, is central to freedom of journalism. In order to better understand freedom of journalism, here are terms and ideas that are foundational to a free press.
State action: This is required in order to have a First Amendment claim. Action must be taken by a government actor that limits freedoms afforded by the First Amendment. If there is no state action, there is no First Amendment claim.
Government actor: A person that has power given to them from the government. This is usually all elected officials. The Supreme Court defines a government actor as a person with a “position in government that has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general interest in…all government employees.”
Trial court: These courts have the most broad jurisdiction and see the most cases. These are the lowest level of court and cover a local area.
Appellate court: Appellate court is the next step up on the rung of courts. These courts can approve a retrial in the case that there was a procedural error in the trial courts. Appellate courts are a step removed from local politics and that fresh perspective helps to catch errors.
Supreme Court: This is the highest court in the nation. This court hears the fewest cases during the course of a year. Judges are appointed by the President and serve for life. If procedural errors still persist after an appeal to an appellate court, cases may escalate to be seen by the Supreme Court.
Plaintiff: The party bringing a suit against another in court.
Defendant: The party being sued or accused in court.
Defamation: This is a statement–spoken or written–that is false, believable, harmful, and communicated to a third party. It also must clearly identify its subject. Slander is the spoken form of defamation, while libel is written. Defamation can take one of two forms: per se, meaning the statement is clearly and overtly defamatory; or per quod, when the harmful statement is implied. A per quod defamatory statement is not apparently defamatory but further evidence shows an injurious meaning.
Tort of Libel: In order for a statement to be libelous, it must meet six criteria:
- Defamatory content: The statement must highlight an objectively verifiable fact. It must also injure one’s reputation.
- Falsity: The statement must be untrue.
- Publication: The statement must have been communicated to a third party (at least one other person).
- Identification of plaintiff: The statement must be of and concerning one individual. It can clearly identify a person even without stating a name.
- Fault: The person that made the libelous statement wasn’t careful enough with their speech. They were either negligent or reckless in making a statement that they knew was untrue. Negligence is generally only applied to a private person’s claims. Recklessness or previous knowledge can be made into an actual malice claim.
- Harm: The statement must cause harm to a person’s reputation.
Actual malice: This is communicating defamatory remarks with full knowledge of the statement’s falsity or with a reckless disregard for the truth. It applies to public officials (i.e., elected or appointed government actors), public figures (i.e., worldwide famous, niche famous, or involuntarily famous figures), and private citizens. With private individuals, it is difficult to prove actual malice, so the more common route is to prove negligence–merely that whoever made the statement didn’t do their duty in research before communicating.
Prior restraint: The court restricting information to be published. This is highly disfavored and restricted by the First Amendment. In order to do this, the court needs two things:
- Compelling reason: Reasons such as national security or life/death are considered compelling. In addition, if the speech provokes immediate, likely action, that provides compelling reason.
- Narrow tailoring: If prior restraint is to be enacted by a judge, it must be narrowly tailored to affect only the harmful speech.
Privacy tort: There are four categories for privacy invasion:
- Intrusion upon seclusion: This can be literal, physical intrusion or otherwise. It must also be a substantial intrusion, one that would offend a reasonable person. Being ignorant of intruding on another and unintentionally intruding are not excuses or justification.
- Appropriation of a name/likeness: This is the unauthorized use of another’s name or likeness that has intrinsic value for the use or benefit of another.
- Publicity given to private facts*: In order to claim this, the statement must be true. The matter made public must be one that would be highly offensive and objectionable to a reasonable person. There also has to be no public interest in the matter.
- False light*: In contrast with publicity given to private facts, false light requires that a statement be untrue. It must also be highly offensive and misrepresent an individual before the public.
*Note: Publicity given to private facts and false light cannot be claimed simultaneously. They are fundamentally different. While both claims require statements to be highly offensive, publicity given to private facts claims that the statements made were true, while false light requires the statements to be false.
Subpoena: A court order compelling an individual to witness during trial or compelling an individual to provide documents for the court.
Reporter’s privilege: With reporter’s privilege, reporters can refuse to obey a subpoena. In order to use reporter’s privilege, there must be three criteria met:
- A compelling* government interest
- Probable cause** to believe the information is relevant to illegal conduct;
- There is no less intrusive means to obtain the information.
*Compelling interest: A matter of life and death.
**Probable cause: Relevant to government activities.