The following will discuss the implications of the First Amendment and prior restraint by summarizing the 1971 landmark case New York Company v. United States how the decision impacted the press and free speech and how this case guides the actions for professional communicators creates digital messages.
First Amendment and Prior Restraint
The First Amendment allows for the Freedom of Speech and the Freedom of the Press (Moore & Murray, 2012). Prior restraint is the means by which the press, usually by the government, can be censored before content is published (Moore & Murray, 2012). The idea is that the press’s freedom is somewhat limited, based on the idea that foreseeable harm could result if the information was released. President Obama enforced prior restraint by preventing photos or recordings showing bin Laden’s body due to concern of potential harm it could cause against the American people (Moore & Murray, 2012).
New York Co. v. United States
In the New York Co. v. United States supreme court case, President Nixon’s administration sought to assert prior restraint on the New York Times and the Washington Post to prevent them publishing classified government documents containing a study of the United States involvement in Vietnam. (CKC, n.d). The President’s claim was that prior restraint was necessary to protect national security (CKC, n.d). The supreme court found that Nixon’s effort to prevent the publications from releasing the documents was an infringement of First Amendment rights and that it was not foreseeable that publishing the documents would threaten America’s safety (CKC, n.d ). As a matter of fact, the classified documents revealed a history of the United States secret unlawful and immoral role in intensifying the war in North Vietnam (EB, n.d).
Mr. Justice Black, in particular, expressed the high duty of the press to protect the American people against the government deception:
And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell (CULS, n.d. para. 10).
In regards to the First Amendment, Mr. Judge Black said it best when he said:
The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government (CULS, n.d. para.10).
The clear implication is that First Amendment rights were put in place for the people, not the government. And really to protect the people from government corruption via the watchdog, whistle-blowing duty of the press. Furthermore, it agrees with political scientist, Williams in Patterson & Lee (2014) that information that is useful, sufficient, trustworthy for the people should be considered relevant regardless of category or source.
As it relates to prior restraint, this case showed that prior restraint should not be used to hide the corruption of the government, or hide information vital to the people, such as the so-called Pentagon Papers, which served to end an unwarranted war that took the lives of many unnecessarily. And an attempt to do so is a violation of the press’s freedom.
Impact on Freedom of the Press and professional digital communication
Additional words by Mr. Judge Black’s words displays how this case impacts the Freedom of the Press by encouraging dutiful reporting:
In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do (CULS, n.d. para.10).
Mr. Judge Black supports the practice of reporting leaks as part of the responsibility of journalists. Martin Linsky (1986 in Patterson & Lee, 2014, p.139, para. 4) observes that “leaks have become part of the Washington policymaking process.” Elected, appointed, policymakers and government employees leak information to find out how people will react to certain information, to bolster support or prevent a cause, and bring attention to the government when they believe it is not serving the public good (Patterson & Lee, 2014).
The increase of those willing to leak information and the confidence to do so can increase the ethical challenges for journalist and professional communicators in the digital space and the heightened need for careful reporting. In 1971 social media and the internet were nowhere in site and information did not travel nearly as fast as it does now. Today information spreads in an instant increasing the potential for harm.
What professional communicators can also learn from this case is that the New York Times and the Washington Post were also dutiful in adhering to the temporary restraint against further publication of the documents once a portion had already been published. And they proceeded with utilizing the process of law to fight for their right to Freedom of the Press to release the documents via the legal system-not taking matters into their own hands.
Their example to professional media communicators in the digital space illustrates the importance for discerning the information, fact checking and going through the proper chain of command when leaked information is obtained. The Washington Post (n.d. Para. 10 ) admonishes that journalist should “consult your editor,” when the credibility of a source is questionable. In addition media professionals should always consult supervisors when leaked information is obtained so that the best decision regarding the information can be made.
The First Amendment guarantees the Freedom of Speech and Freedom of the Press. Prior restraint can be used by the government to limit that freedom based on the greater need to prevent foreseeable harm. In 1971, the Nixon Administration tried, unsuccessfully, to prevent the New York Times and the Washington Post from publishing classified documents detailing the history of the United States involvement in Vietnam. Nixon’s administration claimed that releasing the documents would jeopardize national security. However, the supreme court ruled in favor of the press for courageous reporting and uncovering government deception. The implications from this case are that it is the duty of the press to uncover government corruption regardless the source. The duty of journalist and media professionals are to the people and not the government. Also, those that do perform their duties courageously should be commended and know that the highest court of the land is in support. Following this case is the increase of those willing to leak information and the increased need for discernment and careful communication practices. Additionally, the digital space increases the potential for harm when misinformation or foreseeable dangerous information can spread instantly. Professionals can use the example of the New York Times and Washington Post to guide them to go through the proper process, adhere to the law, fact-check and consult supervisors before creating digital messages containing leaked information.
Chicago- Kent College of Law at Illinois Tech. [CKC] (n.d) New York Times co. v. United States. Oyez. Retrieved from https://www.oyez.org/cases/1970/1873
Cornell University Law School [CULS] (n.d) New York Times co. v. United States. Legal Information Institute. Retrieved from https://www.law.cornell.edu/supremecourt/text/403/713
Encyclopedia Britannica [EB] (n.d) Pentagon Papers. Encyclopedia Britannica.https://www.britannica.com/topic/Pentagon-Papers
Moore, R.L.,Murray, M.D (2012) Media Law and Ethics (4th ed.)New York, N Y: Routledge
New York Times [NYT] (1971, July 1) Supreme Court, 6-3, Upholds Newspapers on Publicationof Pentagon Report. Newyorktimes.com https://www.nytimes.com/books/97/04/13/reviews/papers-final.html
Patterson, P., Wilkins, L. (2014) Media Ethics: Issues and cases 8th (ed). New York, NY:McGraw-Hill
Washington Post [WP] (n.d) Digital Publishing Guidelines. Washingtonpost.com. Retrieved from http://www.washingtonpost.com/wp-srv/guidelines/social-media.html
Featured image retrieved from: https://www.youtube.com/watch?v=Bs2ICeCV5xk