by Robin Roenker
In the United States the press is often referred to as the Fourth Estate, the other estates being the three branches of government—legislative (Congress), executive (the President) and judicial (the courts). The press, and all forms of news media, are seen as providing a check on these three branches.
The notion of “freedom of the press” has been ingrained in American society since the country’s early days. The First Amendment to the U.S. Constitution, ratified in 1791, states, “Congress shall make no law…abridging [limiting] the freedom of speech, or of the press.”
Founders like James Madison described the free press as a “great bulwark of liberty,” noting that press freedom should be seen as “inviolable” [unbreakable]. Thomas Jefferson, meanwhile, famously said that given the choice between a government without newspapers or newspapers without a government, he “would not hesitate to prefer the latter.”
America’s Founding Fathers understood the importance of providing journalists with the freedom to report accurately and honestly on the news of the day without fear of retribution. Having lived under a monarchy, they recognized the key role that a free press could play in the open exchange of ideas, critical for a successful democracy. They also viewed journalism as a vital source of checks and balances against potential misuses of authority.
Despite the Founding Fathers’ support of press freedom, there have been times in American history when freedom of the press has been under attack. For example, in 1798, President John Adams signed the Sedition Act into law in order to suppress political dissent and silence his critics. The act made it illegal to publish “false, scandalous, and malicious writing” against the government.
Bernard Bell, a professor at Rutgers Law School in Newark and a constitutional law expert, says the act applied to any person who wrote, printed, uttered or published false, scandalous and malicious statements against the government of the United States, and made any such person subject to punishment.
“It did not apply only to members of the press; however, most of the small number of prosecutions for violating the Sedition Act were against newspapers,” Professor Bell says. “More generally, the Act was viewed as not merely a violation of freedom of the press, but of freedom of speech.”
Professor Bell notes that the U.S. Supreme Court never ruled on the constitutionality of the Sedition Act. It expired in 1801 when President Adams’ term ended, and President Jefferson’s began.
According to Professor Bell, the First Amendment’s Free Press Clause doesn’t offer any more protection than its Free Speech Clause.
“Most cases involving newspapers are actually decided under the Free Speech Clause, not the Free Press Clause,” Professor Bell says. “If there were a distinction between the press and all other ‘speakers,’ there would be difficult questions of determining exactly who a part of ‘the press’ is.”
Professor Bell notes that traditional reporters for newspapers and broadcast stations are clearly part of “the press.”
“But what about bloggers and Tik Tok influencers? Are they part of ‘the press’ as well if they write about politics, political campaigns or social trends,” Professor Bell asks. “What about non-journalists who research and write books about public issues?”
U.S. Supreme Court rulings on press freedom
Several key U.S. Supreme Court decisions have helped solidify press freedoms. For example, Near v. Minnesota (1931) struck down a Minnesota state law that allowed officials to shut down newspapers deemed malicious, scandalous or defamatory. The decision helped establish an understanding that, in most situations, the government has no legal right to prior restraint.
Prior restraint refers to any government action that prohibits speech before it happens. In terms of the press, it means that the government can’t censor information from being published.
With the case of New York Times Co. v. United States (1971), the U.S. Supreme Court sided with The New York Times when the newspaper published classified Vietnam War documents known as the Pentagon Papers. The documents revealed that the U.S. secretly increased attacks during the Vietnam War. The Times’ position was that the public had a right to know this. The Nixon Administration attempted to block their release, citing issues of national security. In a 6-3 decision, the Supreme Court found that the U.S. government had not met the heavy burden needed to justify prior restraint under the First Amendment.
More recent cases have netted both gains and limits for press freedoms. For example, the Supreme Court’s 5-3 ruling in Hazelwood School District v. Kuhlmeier (1988) upheld public school officials’ rights to exercise editorial control over school-sponsored student publications. In their ruling, the Court found that student newspapers are not intended as public forums in which everyone could share views, but rather as a limited forum, subject to school editing.
On the other hand, in a win for open reporting, the U.S. Supreme Court found in Bartnicki v. Vopper (2001) that the press cannot be punished for publishing information of public concern—even if a source obtained it illegally, so long as the journalist writing the piece did not engage in any illegal information gathering.
Sullivan offers clarification
Arguably the most famous and consequential case dealing with press freedom is the 1964 case of New York Times Co. v. Sullivan. In that case, the U.S. Supreme Court unanimously held that the First Amendment protects publication of statements about public officials—even if false—unless they had been made with “actual malice.” Sullivan represented a transformational shift in legal protection for journalists and, therefore, of free speech.
The case involved a full-page ad, taken out by supporters of Martin Luther King Jr., that The New York Times published in 1960. The ad criticized the police and other elected officials in Montgomery, Alabama for the mistreatment of civil rights protesters. The copy of the ad contained some factual errors and Montgomery Police Commissioner L.B. Sullivan sued the newspaper for libel, even though he was not one of those mentioned in the ad. An Alabama court awarded Sullivan $500,000 in damages and the Supreme Court of Alabama affirmed that ruling. The Times appealed the decision to the U.S. Supreme Court.
In the Court’s majority opinion, Justice William Brennan wrote, “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
In an essay about Sullivan’s enduring importance, published by Columbia University’s Knight First Amendment Institute, Samantha Barbas, a legal historian and professor at the University of Iowa College of Law, wrote, “Before 1964, a person who sued for libel didn’t have to prove the statement in question was false; rather, falsity was presumed. The plaintiff didn’t have to show actual injury to their reputation, only that the statement had the potential to harm their reputation.”
In other words, the burden was on the newspaper to prove that their reporting was true. Since the Sullivan decision, a plaintiff suing a journalist or news organization for libel must prove that an offending statement was published with knowledge of its falsity or with a “reckless disregard” for the truth.
In his 1991 book, Make No Law: the Sullivan Case and the First Amendment, Anthony Lewis, the late Pulitzer Prize winning legal journalist wrote, “Without New York Times v. Sullivan, it is questionable whether the press could have done as much as it has to penetrate the power and secrecy of modern government, or to confront the public with the realities of policy issues.” Of the Court’s decision, Lewis wrote, “The ultimate beneficiary was not the press but the public.”
Discussion Questions
- Refer to Professor Bell’s argument regarding who should be included as part of “the press.” Who do you think should be included or excluded? Why?
- Do you agree or disagree with the U.S. Supreme Court’s decision in New York Times v. Sullivan, which shifted the burden of proof in libel cases? Explain your answer.
- Read The Rise of News Deserts on page ??. What do you see as the drawbacks of not having a local newspaper? Explain your answer.
Glossary Words
affirm—to uphold, approve or confirm.
appealed—when a decision from a lower court is reviewed by a higher court.
libel—something that is published (that is untrue) which damages a person’s reputation.
majority opinion—a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
malice—a deliberate wrongful act with the intention of causing an injury.
monarchy—a government ruled by a monarch (king or queen).
plaintiff—person or persons bringing a civil lawsuit against another person or entity.
This article originally appeared in the winter 2026 issue of The Legal Eagle, NJSBF’s legal newspaper for kids.