Spotlight: free speech and media freedom in USA

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Free speech and media freedom

i Protected forms of expression

The First Amendment to the US Constitution provides strong (but not absolute) protection to all forms of speech. As a general matter, 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content'.² The few limited categorical exceptions include obscenity, child pornography, defamation, fraud, incitement, true threats and speech integral to criminal conduct.³ Although there may exist some categories that should be unprotected that the US Supreme Court has yet to identify, the Court has rejected recent legislative efforts to add violent video games, depictions of animal cruelty, lying about military honours and virtual child pornography to the list of unprotected categories.⁴

False speech is protected unless it involves defamation, fraud or some other legally cognisable harm; falsity alone is not enough.⁵ Hate speech is also protected, reflecting the bedrock principle that the government 'may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable'.⁶ The First Amendment affords special protection to 'even hurtful speech' when it concerns a public issue to 'ensure that we do not stifle public debate'.⁷

In addition to rejecting new categories of unprotected speech, the US Supreme Court has recently made it more difficult for the government to restrict protected speech. Although it has long been true that the First Amendment requires the highest level of judicial scrutiny whenever the government regulates speech 'because of disagreement with the message it conveys',⁸ the Court more recently held that any law that (either on its face or by design) targets protected speech based on its communicative content is subject to strict scrutiny review 'regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech'.⁹

Commercial speech, which includes commercial advertising, promises and solicitations, is unprotected if it is false or misleading, and it is otherwise subject to regulation under an intermediate level of scrutiny.¹⁰ However, in Sorrell v. IMS Health Inc,¹¹ the Supreme Court applied heightened scrutiny in striking down a Vermont law prohibiting the use of pharmacy records by pharmaceutical companies for marketing purposes on the ground that the law unconstitutionally discriminated based on the content of the speech and the identity of the speaker, rejecting the state's argument that such judicial scrutiny was not warranted because the law was 'a mere commercial regulation'.¹² However, media and entertainment products are not commercial speech merely because they are distributed or sold as part of for-profit enterprises.¹³ Accordingly, even false media reports are generally not actionable under consumer protection laws.¹⁴

ii Newsgathering

Publishers have no special immunity from the application of general laws, and enforcement of these laws against the press 'is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations'.¹⁵ Generally applicable laws 'do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news'.¹⁶ For example, the press may not with impunity break and enter into an office or dwelling to gather news, nor may the media disregard copyright laws when they publish material copyrighted by others or agree to restrain trade in violation of the antitrust laws. However, a publisher cannot be held liable for the unlawful procuring of information by a source if the publisher was not involved in the illegal conduct and accessed the information lawfully and where the information is of public concern.¹⁷

Undercover reporting techniques have been the subject of several lawsuits challenging the constitutionality of state 'ag-gag' laws that criminalise the infiltration of agricultural production facilities to document illegal, unsanitary or inhumane conditions. In Animal Legal Defense Fund v. Wasden,¹⁸ the court struck down the provisions of an Idaho statute prohibiting making a misrepresentation to access an agricultural production facility and unauthorised audio or video recording of the facility's operations on the ground that these were content-based restrictions of protected speech that were broader than necessary to protect the property owner's interests.

In private tort actions, the legitimate newsgathering purpose of secret recording often outweighs a plaintiff's asserted privacy interests. In Medical Laboratory Management Consultants v. American Broadcasting Companies,¹⁹ for example, the court held that the secret taping of a conversation concerning the business operations of a medical laboratory did not implicate a reasonable expectation of privacy because the information was 'at most, company confidential' and did not involve private and personal affairs of the lab owner.²⁰ Any 'offensiveness of the alleged intrusion' was 'mitigated by the public interest in the news gathered'.²¹ There are limits to this principle, however. Journalists do not have a 'license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast'.²²

iii Freedom of access to government information

Access to federal government information is governed by the Freedom of Information Act,²³ which, inter alia, directs federal agencies to make records promptly available to any person on request. The statute exempts from disclosure nine categories of documents, including classified information, trade secrets, privileged inter-agency or intra-agency memoranda or letters, and law enforcement records or information if disclosure could reasonably be expected to interfere with ongoing law enforcement proceedings.²⁴ States have their own freedom of information laws and processes for obtaining information about the workings of state government.²⁵

iv Protection of sources

Journalists do not have a First Amendment or common law right to refuse to comply with a grand jury subpoena,²⁶ even if doing so requires the disclosure of confidential sources.²⁷ Lower courts relying on the Supreme Court's decision in Branzburg v. Hayes have affirmed contempt orders against prominent journalists who refused to reveal their sources in criminal leak prosecutions.²⁸ Efforts to pass a federal shield law overturning these decisions have failed.

Outside the grand jury context, the federal circuit courts vary in the extent to which they recognise a reporter's privilege for communications with sources. The Second Circuit Court of Appeals, for example, has recognised a qualified privilege for both confidential and non-confidential information²⁹ and in both civil and criminal cases,³⁰ whereas the Fourth Circuit has struck a different balance between newsgathering and law enforcement, recognising a qualified privilege only in civil cases,³¹ and the Seventh Circuit has called into question the extension of the privilege to non-confidential sources.³²

Although there is no federal shield law providing statutory protection to confidential sources, most states have enacted shield laws. The New York Civil Rights Law, Section 79-h, for instance, provides absolute protection for confidential sources and qualified protection for non-confidential sources. These laws vary from state to state in terms of the scope of protection they provide.

v Private action against publication

Publication-based causes of action available to private persons include defamation, invasion of privacy and intentional infliction of emotional distress. Companies can sue media entities for defamation, trade libel, breach of a duty of confidentiality, disclosure of trade secrets and tortious interference. These torts, when based on claimed falsehoods, are limited by the First Amendment to the Constitution, which has been interpreted to impose on public official or public figure plaintiffs the requirement to prove that a statement was made with actual malice (i.e., with knowledge of its falsity or reckless disregard for its truth).³³ In private figure cases, states are free to require a lesser showing of fault 'so long as they do not impose liability without fault'.³⁴ To be actionable, a statement must be susceptible to being proved true or false,³⁵ and when a statement is of public concern, the plaintiff bears the burden of proving falsity.³⁶

The US Supreme Court has declined to limit the foregoing First Amendment protections to the traditional institutional media (the boundaries of which, in any event, have become blurred with the advent of the internet). Thus, the same First Amendment protections have been applied to individual speakers, including bloggers.³⁷

The relief available in defamation actions generally is limited to compensatory damages. However, although some courts 'adhere to the traditional rule that defamation alone will not justify an injunction against future speech',³⁸ others have upheld narrowly drawn permanent injunctions against specified defamatory speech.³⁹ The trend in the courts and in legal scholarship is towards the view that such limited prior restraint injunctions are constitutional,⁴⁰ but they remain disfavoured, particularly where there are clear public policy interests at stake. For example, a recent effort by former President Trump's now deceased brother Robert to enforce a 2001 confidentiality agreement among Trump family members against his niece Mary to prevent her from publishing a book about the President and her family failed on the grounds that the requested prior restraint would offend public policy and, in addition, would serve no purpose because the book had already been distributed.⁴¹

vi Government action against publication

US courts are generally sceptical of government actions to punish the media based on the content of their publications. For example, when the White House has revoked the press passes of journalists based on assertedly disruptive behaviour, federal courts have enjoined those actions from being implemented on due process grounds.⁴² In 2019, multiple courts held that the First Amendment was violated when individuals were blocked from accessing official government social media accounts, such as President Trump's Twitter feed when he was still in office, in a viewpoint discriminatory manner.⁴³

The government does not violate the First Amendment by enforcing secrecy agreements with government employees requiring prepublication review and clearance of manuscripts to prevent disclosure of classified information.⁴⁴ The court, however, may be unwilling to restrain publication, limiting the relief available. In United States v. Bolton, for example, the court refused to enjoin publication of the former National Security Adviser John Bolton's book about his service in the Trump administration because 200,000 copies had already been shipped. However, the government continued to seek disgorgement of Bolton's profits pursuant to the terms of the secrecy agreement before agreeing to dismiss the case with prejudice in 2021.

vii Anti-SLAPP statutes

To discourage the filing of meritless lawsuits against defendants exercising rights protected by the First Amendment and thereby reduce the chilling effect on protected speech that such lawsuits have, 31 states have adopted 'anti-SLAPP' laws. These laws vary widely from state to state but generally offer a way to dismiss at least some forms of strategic lawsuits against public participation (SLAPP) at the outset of the litigation. In some states, the anti-SLAPP statute only protects defendants from cases arising out of statements made by the defendant in the course of petitioning the government or participating in governmental proceedings.⁴⁵ In other states, the laws broadly protect speech made in connection with a public issue.⁴⁶ Forms of protection provided by such statutes may include (1) additional procedural means to dismiss the case prior to the commencement of discovery, (2) a stay of discovery while an anti-SLAPP motion is pending, (3) a right of immediate interlocutory appeal from the denial of an anti-SLAPP motion and (4) fee shifting that permits successful defendants to recover reasonable attorneys' fees and costs.