Freedom "of the press" sits beside freedom of speech in the First Amendment. English law, as William Blackstone described it in the 1760s, meant mainly no licensing or censorship before publication. American courts have kept that core and added more.
| Case | Question | Holding |
|---|---|---|
| Near v. Minnesota (1931), 5–4 | May a state shut down a newspaper as a "public nuisance" for what it prints? | No: that is a prior restraint, presumed unconstitutional. |
| New York Times Co. v. Sullivan (1964), 9–0 | What must a public official prove to win a libel suit about his official conduct? | "Actual malice": that the statement was made knowing it was false or with reckless disregard of whether it was false. |
| New York Times Co. v. United States (1971), 6–3 | Could the government stop newspapers from printing the Pentagon Papers, a secret study of the Vietnam War? | No: the government did not meet the heavy burden needed to justify a prior restraint. |
Why it works
Two kinds of limits are treated very differently. A prior restraint stops words before anyone reads them, so the public never gets to judge; the Court presumes it unconstitutional. Liability after publication, such as a libel suit for damages, is allowed, but Sullivan made it hard for public officials to win, so that fear of lawsuits would not silence criticism of government. Ordinary people who are not public figures can win more easily. The Pentagon Papers case shows the presumption at work even when national security is claimed; the justices wrote nine separate opinions, and three dissented.
Key idea
The press has very strong protection against prior restraint (Near, 1931; the Pentagon Papers case, 1971). It can still be held liable after publication, but public officials must prove actual malice (New York Times v. Sullivan, 1964).
Worked example: Before or after?
A judge orders a newspaper not to print a story tomorrow. What kind of limit is that?
- The order stops publication in advance.
- That is a prior restraint, which courts presume unconstitutional.
Answer: A prior restraint.
Worked example: Apply Sullivan
A newspaper prints an honest mistake about a mayor's vote. The mayor sues for libel. Will he likely win?
- He is a public official, so he must prove actual malice.
- An honest mistake is not knowing falsehood or reckless disregard.
Answer: Probably not.
Common mistake
Thinking freedom of the press means the press cannot be sued. Publishers can be held liable for libel after publication; the strongest protection is against censorship beforehand. Check: is the government stopping publication, or is someone seeking damages afterward?