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. David:

    You bring up a good point on how most people get their news from television, I think that we can agree that is is shifting in the form of demographics and the likes. I suppose it will in general bounce back and forth at times. I hope that all forms can coexist since each has a particular niche and has advantages over the others.

    For example, relying on the small msg space provided by Twitter tweets. It is not indepth but it is rather instantaneous and can provide links to larger articles. News aggregators are good to gloss headlines. Television news is better for watching successive news segments where watching cascading videos on youtube is rather disjointed. Television is more widely availble in areas where wi fi cannot be utilized.

    I think it is good to let the market and the news customers decide what type of format might win out. As you probably know in the software business, some ideas / systems come and go. Just like Usenet and Dalnet, or tech like UUEncode or .arj algorhythms

  2. How’s that whole “free speech exists outside of a relational context to all other rights” argument working out for you, JT? I see it is still inviting some sterling commentary.


  3. Jeff John Roberts wrote: “…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…”

    I don’t think he is overlooking these entities. From my perspective, you put too much importance upon them. Also, perhaps you overlook the clout that wealth affords a company to defend its investigative reporters.

    By the way, according to gallup, most people still get their news from television rather than internet sources:

  4. Jeff John Roberts: I think you’re overlooking the point the Prof. is making about journalism in the age of the “internets”. There was a time not too long ago when the blogosphere promised to make everyone a citizen journalist. Feinstein seeks to strip sites like Reddit of protection.

  5. Maybe Obama will get the title of worst ever. If he does, it won’t be for long. The next president or the one thereafter will sink lower. Nixon will always wear the crown for being first of an era, the way we still refer to Babe Ruth as the gold standard for sluggers.

    My vote for worst goes to Ford, who gave every future president a get-out-of-jail-free card.

  6. Nick contributes:

    “…even the sycophant butt boys and girls here and elsewhere will admit this man is worse than Nixon.”

    “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….”

    Way to raise the intellectual bar, there Nick. You insist on serving as a continual embarrassment to Prof. Turley, who has probably come to see you as his burden to carry like a crazy uncle stashed in the corner of the living room, incontinent and babbling nonsense and obscenities.

  7. When Blogs stifle comments for reasons other than foul language then the blogging world suffers. Right now the internet is becoming our central locus of freedom. The word “press” is becoming antiquated. Printed newspapers have become good at running mug shots of folks recently arrested in town. The battles against the NSA are being waged by newspapers like the Guardian which is overseas. The Washington Post has a new owner. I don’t see him engaged over NSA and the Snowden developments. In the Pentagon Papers era the Graham family stuck up for the whistleblowers. Same with the Sullivans who owned the NYTimes. Same with the Pulitzer family that owned the St. Louis Post Dispatch. Things have gone to hell in a hand basket. If they don’t quit censoring people on this blog the I am going South. They kicked the dogs off.

  8. Samantha,

    Not ALL whores, but , “90% Right wing wrong uns” in the BIG corporate media and in Congress.

    White Anglo Saxon Protestant/Christian Democracy should mean ‘caring’ not ‘callous’ Capitalism, free-markets not Fascist fraud markets.

    Meanwhile, 90% follow the money to the BIG Whore – Mammon.

  9. J Smith, And, the political powers, led by Diane Feinstein, and supported by political sycophants and MSM, want to take away the First Amendment rights of blogs like this.

  10. When the media is subject to censure by the government then it’s no longer a free press…..

  11. Unfortunately, the 4th Estate of Burke (via Thomas Carlyle) has become hopelessly corrupted by corporate and ideological influence, if not quite yet antiquated. which leaves us with the issue of formulating protections for and promoting the efficacy of what Stephen D. Cooper has coined: The Fifth Estate.

    Which we’re all participating in right here on this blog.

  12. Some are either brainwashed or otherwise impaired. They can only see this in partisan terms. They are a big part of the problem.

  13. Giovanna, remember when the pot get stirred the sludge at the bottom gets stirred to the top. Years worth of these abuses from different Administrations might also be seeing the light of day. Maybe no one will get away with destroying videos of torture this time.

  14. willystina, I suppose Obama is more right than left, too. Everyone knows, second and third hand by now, this nation has been in decline ever since LBJ’s proclamation. Labeling all stockholders as right wing, is like labeling all women as whores. Are you a stockholder?

  15. This article fails to note that the “Media” today is not the watchdog Fourth Estate of forty or fifty years ago. Today’s corporate media, including the NY Times, Washington Post and the major networks are simply extensions of and the propaganda arms and legs of the ruling class. Infortainment is the structure of the “news” with its minions such as Pelley, Sawyer, Williiams, Gregory and “60 Minutes” highly-paid PR flacks who dance with those they supposedly “cover.” Much like the wholly-owned Congress and Administrations, regardless of party, the corporate media promotes at best conventional “wisdom” or, at its worst, thanks to Murdoch and Ailes, fear and ignorance glorified.
    The Bush/Obama Administration’s “attacks” on the “media” focus on the outliers and few true investigative journalists left. Those few are seldom supported by the corporate infotainers who merely pose as “journalists.”

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