13 CHAPTERFREEDOM OF PRESS AND
OTHER MEDIA-RELATED ISSUES
Outline
I. History of Freedom of the Press
A. Pre-Revolutionary prior restraints
1. British sought to prevent criticism of government and its agencies
a. Passed tax laws to suppress publication of comments and criticisms of the King
and his policies
B. Post-Revolutionary War
1. Massachusetts legislature passed Stamp Act
2. Leads to passage of First Amendment
C. Selective incorporation
1. Near v. Minnesota, 283 U.S. 652 (1925)
a. Freedom of press made applicable to the states
(1) Right is not absolute
b. Prior restraints found constitutionally impermissible
c. Court will use strict scrutiny when state acts to impose prior restraint
II. Special Privileges of the Media
A. Court has never recognized special privileges for the media
1. Ambiguity exists because press freedom not deemed part of overall right to free
expression
2. Court pronouncements on special privileges for the media
a. Publisher has no special immunity from the application of general laws
b. Restrictions on publishers’ rights
(1) Cannot publish information that is false or damaging to one’s reputation
(2) Journalists may be punished for contempt of court
(3) No guarantee of special access to information not generally available to the
public
B. Specific issues
1. Appearance before grand jury to reveal source
a. Branzburg v. Hayes, 405 U.S. 665 (1972)
(1) Compelling journalist to answer questions about sources before a grand jury
does not violate First Amendment free press guarantee
(2) Necessary for the grand jury to perform its function
(a) Granting privilege to journalists would undermine the authority and
ability of the grand jury function
b. No federal privilege for journalists
(1) History of First Amendment leads to this conclusion
(2) Necessary for effective law enforcement
(3) Forecloses informants’ ability to escape prosecution
2. Search of newspaper office
a. Zurcher v. The Stanford Daily, 436 U.S. 547 (1978)
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(1) Search does not require specific proceedings from those required by th