Freedom of the Press

The concept of a free press applies to all forms of communication. By all degree, these freedoms belong to anyone who has a message aimed at a mass audience.The First Amendment’s protects speech and expression and enabling everyone to engage in an uninhibited debate. The Fourteenth Amendment, added to the Constitution in 1868, extends the freedom of expression to governmental bodies, from Congress to local government boards.Some states have additional protections specifically for journalists regarding speech and privacy rights. These can include reporter’s shield laws and retraction statutes, fee waivers for Freedom on Information Act requests, even campaign finance laws.

The U.S. Copyright Act has a fair-use exemption, allowing a defendant to a copyright-infringement claim to escape liability on the theory that it is only equitable that he should be able to use the original work in some

Who is a Journalist?Constitutionally, the government cannot legally define who is entitled to act as a journalist or control who can gather and disseminate news. Furthermore, the First Amendment explicitly forbids Congress to single out the news media for regulation or punishment that would not be imposed on others.

Media AccessThe First Amendment provides a right to gather news… However, some courts have found that news media have no constitutional right of access to places where the general public is excluded. Most states allow public access to courts, allowing the press (whether or not they’re writing for an online publication) the same right of access as the public.

Reporters’ privilegeReporters are protected, on a state-by-state basis, by statutory law or constitution, from testifying about confidential information or sources at trial. Reporters often use confidential sources for information that otherwise they would not be able to obtain. For a variety of reasons, the government (or others) may want the reporter to reveal her source. In many jurisdictions, but not all, the courts presume that the reporter has a right not to identify her confidential sources. Generally, the privilege will apply unless those trying to get the reporter to divulge her source make a case that:

  • Their claim has merit.
  • The information sought is necessary or critical to making their case.
  • A reasonable effort to acquire the information has not yielded any results.
  • The interest of the reporter in keeping the information secret is not supported by the need to preserve the confidentiality of the information.

Shield LawsJournalists’ interaction with sources sometimes involves confidentiality. State and federal Shield Laws provide legal protection for journalists, allowing them to keep private the names of their confidential sources and the unpublished information provided by the sources, even when demanded by police or prosecutors. This protects the anonymity of news sources and thus helps encourage the free flow of information.

Public DomainAs a general rule, most works enter the public domain because of old age. This includes any work published in the United States before 1923. Another large block of works are in the public domain because they were published before 1964 and copyright was not renewed. (Renewal was a requirement for works published before 1978.) A smaller group of works fell into the public domain because they were published without copyright notice (copyright notice was necessary for works published in the United States before March 1, 1989). Some works are in the public domain because the owner has indicated a desire to give them to the public without copyright protection. The rules establishing the public domain status for each of these types of works are different and more details are provided throughout this chapter.

Oregon Public Record LawsOregon Public Record Laws require meetings of public bodies to be open and public. This includes meetings by county and city agencies, school districts, agency boards, commissions, committees, and the like. Under limited circumstances, the agency can conduct a closed meeting (such as for addressing certain personnel issues).

Prior RestraintCensorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes Prior Restraint every time permission is denied. Prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific document or subject.

Fair use
manner. Fair-use inquiries are examined case by case and depend on four factors:

  1. The purpose and the character of the use.
  2. The nature of the original copyrighted work.
  3. The amount of the original work used in the secondary work.
  4. The economic impact of the use.


Reporter’s PrivilegeFirst Amendment provides a right to gather news… However, some courts have found that news media have no constitutional right of access to places where the general public is excluded. If a government official denies you access to a public place (such as a city street, a public park, the county courthouse, or a jail), contact an attorney – you may have a claim against the government.Right of Access to places and information

Many states generally require meetings of public bodies to be open and public. This includes meetings by county and city agencies, school districts, agency boards, commissions, committees, and the like. Under limited circumstances, the agency can conduct a closed meeting (such as for addressing certain personnel issues). Courtrooms & Criminal ProceedingsCriminal trials are presumptively open to the public and the media. Most states allow public access to courts, allowing the press (whether or not they’re writing for an online publication) the same right of access as the public.

Confidential & Anonymous sources are double-edged – they often provide especially newsworthy information, such as classified or confidential information about current events, information about a previously unreported scandal, or the perspective of a particular group that may fear retribution for expressing certain opinions in the press. The downside is that the condition of anonymity may make it difficult or impossible for the reporter to verify the source’s statements. Sometimes sources hide their identities from the public because their statements would otherwise quickly be discredited. Thus, statements attributed to anonymous sources may carry more weight with the public than they might if they were attributed.Journalists’ interaction with sources sometimes involves confidentiality. Many Western governments guarantee the freedom of the press. By extension, these freedoms sometimes also add legal protection for journalists, allowing them to keep the identity of a source private even when demanded by police or prosecutors.Shield LawsAlmost all the federal and state courts have found that state and federal constitutions provide a qualified privilege to allow journalists to keep private the names of their confidential sources and the unpublished information provided by the sources. This protects the anonymity of news sources and thus helps encourage the free flow of information.

More than 30 states have elected to provide protection for journalists over and above the protection afforded by the constitutional reporter’s privilege. For example, through an initiative the people of California included a reporter’s shield in the California Constitution. This shield provides “absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information.” It may be “overcome only by a countervailing federal constitutional right.” The California reporter’s shield protects all persons “connected with…a newspaper, magazines, or other periodical publication,” without limitation.

California Supreme Court acknowledged, “The press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” (Mitchell v. Superior Court)

Shield Law Under Attack:
March 2005, in a case involving Apple Computer and several Apple rumor blogs, the judge declared that the blogs were not entitled to journalist protections with regards to preserving the anonymity of sources as they don’t qualify as a form of journalism. This set a legal precedent that many hope will be reversed on appeal.
THE OREGON SHIELD LAW44.510 Definitions for ORS 44.510 to 44.540. As used in ORS 44.510, unless the content requires otherwise:

  1. “Information” has its ordinary meaning and includes, but is not limited to, any written, oral, pictorial or electronically recorded news or other data.
  2. “Medium of communication” has its ordinary meaning and includes, but is not limited to , any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employe of government within the scope of his or her government function, or any political publication subject to ORS 260.512, 260.522 and 260.532, is not included within the meaning of “medium of communication.”
  3. “Processing” has its ordinary meaning and includes, but is not limited to, the compiling, storing and editing of information.
  4. “Published information” means any information disseminated to the public. (5) “Unpublished information” means any information not disseminated to the public, whether or not related information has been disseminated. “Unpublished information” includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not themselves disseminated to the public through a medium of communication, whether or not such material has been disseminated.44.520 Limitation on compellable testimony from media persons; search of media person’s papers, effects or work premises prohibited; exception.

  1. No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise: (a) The source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public; or (b) Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public.
  2. No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime. 44.530 Application of ORS 44.520.
    1. 44.520 applies regardless of whether a person has disclosed elsewhere any of the information or source thereof, or any of the related information.
    2. ORS 44.520 continues to apply in relation to any of the information, or source thereof, or any related information, even in the event of subsequent termination of a person’s connection with, employment by or engagement in any medium of communication to the public.
    1. The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information. 44.540 Effect of informant as witness. If the informant offers himself as a witness, it is deemed a consent to the examination also of a person described in ORS 44.520 on the same subject.

Press PassReporters enjoy no special rights, however, beyond those of every citizen but sometimes the government may choose to recognize special privileges for journalists.

Most states have passed statutes that provide varying degrees of protection for reporters who wish to protect confidential sources and unpublished information, and most state courts have granted common law privileges to journalists, as well. As a practical matter, this may be as simple as granting reporters the right to access upon presentation of a “press pass” or affirmation of their journalistic intent. The question takes on constitutional dimensions in the context of testimonial privileges, and from being compelled to reveal confidential communications received in the course of their work.

Some government agencies have established procedures for obtaining press credentials (a means of identifying yourself as a journalist). Government agencies are prohibited from deciding arbitrarily whether you are entitled to a press credential, and are required to publish the standards used.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s