First Amendment: Freedom of the Press

The First Amendment to the U.S. Constitution provides that "Congress shall make no law...abridging the freedom...of the press." This provision now protects the freedom of the press from government interference, subject to some limitations. Judicial precedent has given Congress the authority to balance competing interests and create some limitations on free speech. For example, the FCC regulates obscene and indecent speech on the radio and television.

Reporters' Privilege: Shield Laws

A reporters' privilege refers to the limited First Amendment right many jurisdictions in the United States have given to journalists. This privilege, which comes from statutory law or judicial decisions, allows journalists to protect their confidential sources from disclosure and varies by state as to who may assert the privilege, what types of confidential information are protected, and the types of proceedings during which the privilege may be asserted.

Traditionally, states have only extended the reporters' privilege to individuals working for mainstream news media organizations. However, in California, an appeals court ruled that the same shield laws that protect print and broadcast journalists also protect online reporters, commentators and bloggers.

No federal shield law exists. In recent years, journalists have pressed Congress harder for one, particularly in the wake of the Central Intelligence Agency (CIA) leak scandal, in which federal investigators subpoenaed reporters who learned the name of undercover CIA agent Valerie Plame in order to learn what government sources leaked the information to the press. The reporters refused to comply with the federal grand jury subpoenas, asserting reporters' privilege. However, the courts rejected the claims for privilege and jailed reporter Judith Miller of The New York Times for not complying with the subpoena. Congress took up the issue of reporters' privilege in 2005 with the introduction of the Free Flow of Information Act of 2005, a shield law designed to protect reporters who seek to protect their anonymous sources in federal court proceedings. The bill did not become federal law and reporters may not rely on a reporters' privilege to avoid federal subpoenas.

The U.S. Department of Justice adheres to self-imposed guidelines for use of subpoenas, which are intended to protect the press by requiring that "all reasonable attempts should be made to obtain information from alternative sources" before issuing a subpoena to a journalist.

Federal Regulation of the Media

Several federal statutes seek to ensure the freedom of the press guaranteed by the First Amendment, such as the Freedom of Information Act and the Privacy Act. The Freedom of Information Act of 1966 (FOIA) applies to the federal government and allows citizens or organizations to request information from federal sources. This law specifies procedures for applying for documents from federal agencies, which are subject to penalties for failing to process a petition for information. FOIA has nine exemptions that may prevent the release of some information, such as those protecting individuals' privacy and national security interests. The Privacy Act of 1974 is a similar federal law that provides access to government documents.

The Communications Act of 1934 (47 U.S.C. § 151 et seq.) created the Federal Communications Commission (FCC), which regulates interstate and foreign communications by radio, television, wire, satellite, and cable. The FCC replaced the Federal Radio Commission, created by the 1927 Radio Act, in order to combine telecommunication regulation of all wired and wireless services. FCC jurisdiction covers all 50 states, the District of Columbia, and U.S. possessions, and it is responsible for processing applications for radio and television station licenses and other filings, addressing listener and viewer complaints, conducting investigations, and developing and implementing regulations to protect the public interest in the airwaves. Separate branches of the FCC oversee different forms of media.

Congress overhauled the Communications Act of 1934 when it enacted the Telecommunications Act of 1996 with the goal of deregulating the telecommunication industry. The new law created comprehensive regulations for radio and television broadcasting, cable television and telephone services, Internet and on-line computer services, and telecommunications equipment manufacturing. In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA), which prohibits the making or selling of devices or services that are used to circumvent copy protection methods.

Media Regulation by States

State laws commonly affecting the media involve actions in tort for defamation, which is an untrue statement communicated to another person that harms the reputation of a person or organization, including attacks on a person's integrity, honesty, or virtue, resulting in public contempt, ridicule, or financial injury. Defamation can take two forms: libel, which is a printed form of the harmful statement; or slander, which is spoken. If a defamatory publication by the media harms a person's reputation, he or she may be entitled to money damages against the news organization. It is much easier for a private citizen to prove that his or her reputation has been harmed by libel or slander than a public official or public figure. Corporations may also sue for harm to their reputation caused by the media. Government agencies generally cannot sue for defamation.

Although the First Amendment guarantees press freedom, members of the news media must still comply with state and federal laws while reporting stories. State law and judicial decisions regulate acts committed by journalists, such as fraud, trespass, intrusion, eavesdropping and wiretapping, while reporting their stories.

All states also have passed their own, varying versions of the Freedom of Information Act that require disclosure of state and local government records, sometimes called "sunshine laws." Many states also have enacted open meetings laws. Open meetings laws do not always allow all citizens to attend meetings of state and local governments and regulatory authorities, but they do provide that media and representatives of the public can attend, and that the decisions and records be made available to the public. Some states combine their laws providing access to government records and meetings, and some states offer much broader access than others.