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4.1: The First Amendment

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    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.

    Roots of the First Amendment

    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 would educate citizens about their rights and responsibilities within the newly formed democratic republic.

    It is not an accident that the First Amendment, and its protection of speech and the press, leads the Bill of Rights. Jefferson himself wrote: "Our liberty depends on the freedom of the press, and that cannot be limited without being lost." 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 as well. 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.

    The First Amendment and the Supreme Court

    Despite the First Amendment’s unequivocal language, Congress (and state legislatures) have passed a number of laws that abridge the freedom of speech and of the press. Put another way, in trying to promote other ideals, such as national unity and contemporary notions of decency, legislative bodies have adopted many laws that infringe on speech and press freedoms. (Cynics would add that politicians have advanced 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 over what constitutes an acceptable infringement on speech or the press. 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 have 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, 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 United States' legislative branch but also from the interpretations of the First Amendment by its judicial branch.

    Protections for Political Expression

    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' in the political realm, wherein ideas should be allowed to freely compete with one another. Under the marketplace perspective, the best ideas should emerge victorious from robust competition, which in turn should result in a better-functioning democracy. In order to permit robust 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 effectively 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 …​ prevent any part of the government from deceiving the people."

    The courts will therefore often weigh the public benefit of a journalistic product (e.g., news article or broadcast segment) against the harms it could cause to an individual (e.g., their privacy) or the country as a whole (e.g., its national security). The First Amendment does not at all grant journalists or journalistic outlets a blanket immunity against legal liability. However, 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 the subjects of their stories than journalists in most other countries. 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.

    Key Takeaways

    • 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 considered expressions about political and public affairs to be particularly worthy of First Amendment protections.

    This page titled 4.1: The First Amendment is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Rodrigo Zamith via source content that was edited to the style and standards of the LibreTexts platform.