220px-Nytimes_hqSupreme CourtBelow is a longer version of my column that ran today in USA Today. The column was originally written for a longer format but had to be reduced to fight the page. The column looks at state of the Fourth Estate on the 50th anniversary of the decision in New York Times v. Sullivan. I do not wish to understate the threat against the media in 1964 but it is hard to overstate the threat against the media in 2014.

Fifty years ago this month, the United States Supreme Court handed down one of its most celebrated decisions, New York Times v. Sullivan. The decision ranks as one of the most profound defenses of a free press under the First Amendment. In its unanimous decision, the Court referred to growing threats against the media and the need to sharply limit liability for journalists to allow them to perform their role in our constitutional system. Those threats in 1964 however now seem almost quaint in comparison to those faced in 2014 by American media.

The New York Times v. Sullivan decision, and its progeny, was a major reason why the United States was once viewed as the world’s leading protector of press freedom. Now fifty years later, the United States is viewed as a growing menace to press freedom. In this year’s World Press Freedom Index by the respected Reporters Without Borders organization, the United States ranked forty-sixth in the world. The drop of 13 is tied directly to anti-media policies and practices under President Obama. It leaves the United States behind the former Soviet republics of Lithuania and Latvia as well as Romania, Poland and Czechoslovakia (both the Czech Republic and Slovakia), Ghana, South Africa and El Salvador.

ajaxhelperNew York Times v. Sullivan represented a classic conflict between government officials and the free press. The decision by Associate Justice William Brennan actually dealt with an advertisement and not a story. The ad referred to abuses of civil rights marchers and claimed that Martin Luther King had been arrested seven times. (He had been arrested 4 times). Although not mentioned, Montgomery Public Safety commissioner, L. B. Sullivan (shown in suit in the center), sued for defamation and punitive damages. He won under Alabama law in a highly dubious state preceding that awarded $500,000.

Brennan saw civil liability as creating a chilling effect on reporters and their companies, resulting in self-censorship that is just as stifling as direct censorship. Imposing a high standard for proof of defamation, Brennan sought to give the free press “breathing space” to carry out its key function in our system. In his concurrence, Hugo Black stated: “The half-million-dollar verdict does give dramatic proof . . . that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat.”

What the Court described as an imminent and enormous threat to the free press in 1964 pales in comparison to the threats presented in 2014. American media is facing both direct and indirect threats that threaten the entire industry.

Criminal liability

Journalists have found themselves increasingly under threat of criminal charges and surveillance. While courts were highly sympathetic to the media in reporting on civil rights, that sympathy has evaporated when the subject of reports went from figures like Bull Connor to Bin Laden. Both the Bush and Obama Administrations insisted that there is no distinction between journalists and other people who receive classified information for the purposes of criminal charges. The media revealed a couple years ago that the Obama Administration had placed various Associated Press reporters in various offices under surveillance around the country. They were not alone. Later investigative reports by the media found that the Obama Administration targeted Fox News correspondent James Rosen in another story involving leaked classified information. In the 2010 application for a secret warrant, the Obama Administration named Rosen as “an aider and abettor and/or co-conspirator” to the leaking of classified materials. Not only were his communications surveilled but so were his parents.

If that seems perfectly Nixonian, it is actually perfectly Obamian. While Richard Nixon was denounced for using the Espionage Act of 1917 to target journalists and whistleblowers, Obama has brought twice the number of such prosecutions of all prior presidents under the Act. The Obama Administration has pursued whistleblowers with unparalleled investigations and animus. At the same time, it has treated Julian Assange, who published the famous Wikileaks documents, as a criminal as opposed to either a journalist or a whistleblower. The Administration secured a 35-year jail term against Private Bradley Manning as the WikiLeaks source and Assange remains holed up in an embassy in London in fear of extradition by the United States. Assange’s self-exile seems to serve some government officials as a warning to other publishers of what will happen if they disclose such embarrassing material.

Likewise, Edward Snowden revealed a range of abuses in his later disclosures that triggered two task force investigations and a series of proposed reforms. Yet, the Administration has declared him to be a criminal while other nations herald him as a hero. The Administration also seeking an absurd 105-year sentence against freelance journalist Barrett Brown for working with hacktivist collective Anonymous and linking to hacked emails and other leaked information concerning the inner workings of the American security agencies.
Celebrated stories like the Pentagon Papers were based on classified documents disclosed by whistleblowers and published by the media. Most whistleblower cases involve such information since the government tends to classify things that it does not want the public to know, including embarrassing or abusive policies. Under its current policies, Obama would be prosecuting Daniel Ellsberg who was the celebrated whistleblower from the Nixon period.

Civil Liability

At one time, virtually every local news organization had investigative units that went under cover to expose abuses or corruption. Then, in 1997, the federal appellate court in Virginia handed down a ruling against ABC in a case involving the Food Lion grocery chain. The store had sued after an undercover story revealed horrifying unsanitary practices by Food Lion in the handling of meat. While the Fourth Circuit reduced damages from $5.5 million for trespass and misrepresenting reporters as employees, it still held that the media was not protected anymore than ordinary citizens in committing fraud or trespass. The result was widespread changes in the elimination or curtailment of the work of such units long credited with exposing abuses in areas ranging from nursing homes to businesses to prisons.

Reporters are also still facing prison for protecting confidentiality. While 49 states have so-called “press shield” laws protecting reporters from having to disclose confidential sources before grand juries, Congress has resisted such protections for decades. Recently, the incarceration of reporters led to renewed demands for such protection. However, under pressure from politicians like Senator Dianne Feinstein, Congress used the water-downed law to actually limit protections by excluding the growing numbers of “new media” members like bloggers from any protection. Those reporters just happen to have been key in disclosing abuses that Feinstein’s own Senate Intelligence Committee failed to disclose. The key to this new definition is whether the individual makes sufficient salary as a journalist – not whether he or she is performing a journalistic function. With the number of salaried journalists falling, it is a standard that guarantees a shrinking level of protection from government coercion.

Free Press vesus Free Speech
These criminal and civil threats are mounting at a time when the media is facing worsening market pressures posed by the Internet. Circulation numbers are dropping as people go digital for their news. With that drop, ad revenues are falling. The result is the steady closing of newspapers and magazines. The result is that media companies are more timid than ever in dealing with the threat of costly civil liability and litigation. With greatly reduced revenue, the threat of such costs and damages are greatly enhanced for companies with a thinning profit margin. The government and private litigants are fully aware of that vulnerability and exploit it.

Since 1964, courts have proven generally hostile to claims of journalistic principles and rights. Greater protections are now found under freedom of speech as opposed to the freedom of the press. Indeed, the trend appears to be subsuming the rights of journalists under free speech – losing the unique function (and protections) accorded journalists. As with the Feinstein approach to shield laws, this will further reduce reporters to simply citizens with a larger audience or readership. The free press clause will be largely superfluous. What was most powerful about New York Times v. Sullivan was the articulation of a distinct role – and the need for distinct protections – for journalists. Federal courts have steadily eroded that distinction in areas ranging from confidentiality to trespass to possession of classified material. While acknowledging the unique function of reporters, judges routinely deny them any enhanced or distinct protections from other citizens.

Ironically, we are living through one of the most inspiring periods for journalism. Neither the Courts nor Congress forced disclosure of policies ranging from torture programs, expanding warrantless surveillance systems, secret prisons, unilateral “kill list” orders targeting citizens, and other abuses. Indeed, the legislative and judicial branches effectively played critical roles in concealing these policies. They were revealed by a free media by reporters under direct threats from both the Bush and Obama Administrations. Leading journalists have revealed shocking practices and policies buried with the acquiescence of congressional leaders.

Congress needs to look comprehensively at this growing problem and a dying American media. In addition to strengthening criminal and civil protections for the media, we need to consider tax and loans packages to sustain media organizations, including new models for non-for-profit status for such organizations. Our free press has often been the one institution that stood between citizens and government abuse. It is now time we, the beneficiaries of the free press, directly support the Fourth Estate to guarantee that it will offer these same protections to future generations. It will take the public to force such changes. Politicians have a love/hate relationship with the press. They love media coverage but loathe media scrutiny.

If citizens have forgotten the vital burden (and faith) placed on the media by the Framers, they need simply to look around them. Our political system is experiencing widespread and endemic failure. Both the Judicial and Legislative branches have become increasing passive in the face of growing power exercised in the Executive Branch. The only moving part still functioning well in this system is the free press. If this trend is not changed, it is only a matter of time before criminal and civil liability brings even that final safeguard to a grinding halt. When that happens, the government will have achieved the dream of a citizenry left in blissful ignorance: reading only what the government itself releases for public consumption. The question is whether in another 50 years citizens will even recognize the type of journalism celebrated in New York Times v. Sullivan.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of the Board of Contributors of USA Today.


  1. Four hostile newspapers are more to be feared than a thousand bayonets.” – Napoleon Bonaparte

    That reality was grasped by the premier American propagandist, Edward Bernays, who literally wrote the book “Propaganda”.

    That propaganda model has been used by news and other media has been working for a century in the

  2. EVERYTHING white Anglo-Saxon, post-Media Monster William Randolph Hearst is 90% Right-wing ruled.

    Post-WW2 so called ‘Democrat’ Tex Johnson was more Right than left, and the only way Carter, Clinton or O’Barmy could survive is to constantly appease the sub-Fascist raving Right-wing wrong uns, in Congress and in the BIG corps.

    Especially, the 90% raving Right BIG media corps falsely claiming ‘Public Interest’ deviously meaning ‘Self Interest’.

    Dont Dumb Down – Wize Up!

  3. Sometimes, I feel like our country is beginning to look more like China or N. Korea. I am so happy to see that Mr. Turley has stirred the journalistic pot once again to remind us that our 1st amendment rights–as well as all the public rights stated in the Constitution need to be protected.
    The difference between the New York Times vs Sullivan and now is that with the internet, we the American people can speak out and stand up for our freedoms.
    But be cautious as our mainstream media is cunning and deceptive, pushing their own brand of truth–that is why Obama has been able to bamboozle the American public, he has the mainstream media in his pocket.

  4. If George Santayana was right, and I think he was, “Those who cannt remember the past are condemned to repeat it”. Professor Turley has been spot on as of late in his musings regarding the Obama Adminstration. I find Obama affable, articulate of course, but in the Healthcare start up, and in the focus on the media he is proving himself feckless. In the
    executive abuses area I am profoundly worried that the current practices are insidious, and will serve to fulfill Woodrow Wilons desire for a ‘cabinet’ style government…. Thank you Professor Turley..

    full article:

    “Roger Shuler researched and largely wrote his columns from a public library to conserve funds.”

    “Shuler, who had been a nationally prominent blogger authoring hundreds of columns about courtroom injustice affecting litigants across the Deep South, has no lawyer nor any funds for a lawyer.”

    ““I was surprised,” said American Civil Liberties Union of Alabama Legal Director Randall Marshall, “that there wasn’t more of an outcry from the media world when this first happened.”

  6. If things play out in the line they are heading people are going to have to rely on journalists/bloggers who reside outside the United States. The reason is they are more out of reach of the U.S. government than domestic sources who might fear as persons here have described both direct and self censorship.

    It easily could become the same as the situation for citizens of countries such as Turkey, China, and Syria who attack journalists and the citizens resort to outside news about their country, finding any method they can.

  7. I hope that someday the American public will demand and end to the federal government’s attack on the Constitution while it is still possible.

    I have maintained for many years the greatest potential threat to the liberty of American citizens is federal politicians. And, every year it becomes more real than potential.

    I think Professor Turley identified one area of this very well here.

  8. …the 50th anniversary March 10 of the New York Times v. Sullivan U.S. Supreme Court ruling that dismissed a trumped-up libel judgment in Alabama. The ruling enabled national news coverage of the 1960s civil rights struggle and has been regarded otherwise until recently in Alabama as a bulwark for the nation’s free press.
    Selma – Montgomery March, 1965 – p1


    Jailed Journalist Update: Media Respond Timidly; Judge Fights Civil Rights Firm; Rights Anniversaries Loom
    Written by Andrew Kreig
    Justice Integrity Project
    Jailed Journalist Update: Media Respond Timidly; Judge Fights Civil Rights Firm; Rights Anniversaries Loom
    Written by Andrew Kreig
    Published on February 25, 2014

    “The nation’s journalists have compiled an erratic and ineffective record of supporting jailed journalist Roger Shuler, an Alabama blogger who has spent more than five months behind bars.”

  10. [Excerpts]

    “PROBLEM STATEMENT — Article 19 of the Universal Declaration of Human Rights states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. However, such rights have been denied to many due to many reasons. Censorship, one of the major reasons, has received tremendous global attention; self-censorship less so. Yet like censorship, self-censorship denies citizens their right to be informed; self-censorship denies journalists their right to press freedom.”

    “It is journalists’ duty to report the truth to people. Yet some journalists, even those working for media that claim to uphold press freedom, self-censor what they write and report.

    There are two forms of censorship in the media: censorship and self-censorship. Censorship occurs when a state, political, religious or private party prohibits information from reaching citizens. Self-censorship occurs when journalists themselves prevent the publication of information. (See definitions of self-censorship in Exercise 1 below.) Journalists practice self-censorship because they are fearful of what could happen if they publish certain information — they are fearful of injury to themselves or their families, fearful of a lawsuit or other economic consequence.”

  11. Excellent article!

    Of course, corporations and special interest are behind it all. Recently, 1000 black ministers protested against Obama’s policies, I heard, but the press did not cover it because corporations who profit from Obama’s policies don’t want us to know what goes on behind the scenes.

  12. “Four major national security scandals were revealed this week after being ignored for many months by corporate-controlled mainstream outlets.”
    Free Press vesus Free Speech vs. free markets?

  13. Mr. Turley, as a lawyer and a journalist, I generally enjoy your blog, but this post misses the mark. Your handwringing about a “dying American media” is absurd — yes, entities like Newsweek and Time are dying off, and the New York Times doesn’t have the financial or political clout it did at the time of Sullivan. But you’re overlooking the growing influence of new media entities like BuzzFeed and Gawker that are not only thriving, but are doing so to a degree that they are launching new investigative reporting teams — and hiring reporters from the likes of Reuters and the Times.

    You also gloss over the fact that “journalists” once had a monopoly on information by virtue of the fact that there was only one or two printing presses in town. Compare that to today. It’s almost trite to point out that platforms like Twitter and WordPress –which is powering your own blog — have democratized news reporting. And then there are forums like Reddit, Wikileaks, and so on.

    Yes, we should be vigilant about the Bush/Obama Administrations attempted impingements on press freedom, but holding out the Sullivan era as some bygone halcyon time is silly.

  14. The truth according to a far left weenie Hollywood type. He did a good job on Moneyball, I’ll give him that. This show SUCKS and was only given another season because of politics. It will be gone next year, the ratings are dismal.

  15. When this President leaves office, and all of the truth comes out, as it always does, even the sycophant butt boys and girls here and elsewhere will admit this man is worse than Nixon. Well, maybe a few here won’t.

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