AP® United States Government and Politics review sheet from Aim for Five (aimforfive.com/gov/units/3/3-4)
Unit 3 · Topic 3.4
3.4 First Amendment: Freedom of the Press
Freedom of the press means government generally can't block a story before it is published, a practice called prior restraint. In New York Times Co. v. United States (1971), the Court let newspapers publish the Pentagon Papers, a classified history of the Vietnam War, because the government hadn't met the heavy burden needed to stop publication. A free press acts as a watchdog on government.
Key terms
- freedom of the press
- prior restraint
- Pentagon Papers
- New York Times Co. v. United States
Why a free press matters
The press informs citizens and holds officials accountable, a watchdog role (5.12). Without it, voters would know only what government chose to tell them. The First Amendment protects the press against government interference, and the Fourteenth Amendment applies that protection to the states (incorporated in Near v. Minnesota, 1931).
Prior restraint
Prior restraint is government stopping speech or publication before it happens, for example by court order or censorship. It's considered the most serious threat to a free press, because the public never gets to see the material or judge it. Courts presume prior restraint is unconstitutional, and the government must overcome a very heavy burden to justify it.
This is different from punishment after publication. A newspaper can still be sued for libel or face legal consequences for some publications afterward. The First Amendment's strongest protection is against being silenced in advance.
New York Times Co. v. United States (1971)
Facts: The Pentagon Papers were a classified Defense Department study of U.S. decision-making in Vietnam from 1945 to 1967. They showed that officials across several administrations had misled the public about the war. Daniel Ellsberg, a military analyst who had worked on the study, leaked copies to the New York Times, which began publishing excerpts in June 1971. The Nixon administration got a court order halting publication, arguing it would harm national security. The Washington Post began publishing too and was also taken to court.
Holding: Acting within weeks, the Court ruled 6–3 for the newspapers in a short unsigned (per curiam) opinion.
Reasoning: Any prior restraint carries a heavy presumption against its constitutionality, and the government had not met its burden of justifying one. Vague claims that publication might harm national security weren't enough. In a separate opinion, Justice Potter Stewart said the government would have to show that publication would surely cause direct, immediate and irreparable damage to the nation. Several justices wrote separately, some saying the press role in exposing government secrets was exactly what the founders intended.
Significance: The case strongly reinforced the rule against prior restraint, even when national security is claimed. It didn't decide whether the people who leaked the papers could be prosecuted; Ellsberg was charged under the Espionage Act, though the case was dismissed in 1973 because of government misconduct.
Limits on press freedom
- Libel: publishing false, damaging statements can lead to lawsuits, though public officials must prove actual malice.
- School-sponsored publications: in Hazelwood School District v. Kuhlmeier (1988), the Court let public school officials edit a school-sponsored student newspaper for legitimate teaching reasons.
- Reporters' sources: there's no federal shield law, and the Court ruled in 1972 that reporters can be required to testify before a grand jury.
- Broadcast media: radio and TV, which use public airwaves, face some extra rules (such as on indecency) that print and online media don't.
Worked examples
Try each one yourself first, then open the solution.
- Example 1
SCOTUS comparison with New York Times Co. v. United States
A news website obtains internal documents showing a federal agency covered up safety problems. Before the story runs, the agency asks a judge to order the website not to publish, saying it would embarrass the agency and reveal sensitive information. Explain how New York Times Co. v. United States applies.
Show the solutionHide the solution
- Step 1: Identify the issue: the agency wants to stop publication in advance, which is prior restraint.
- Step 2: State the holding: prior restraint is presumed unconstitutional, and government must show a very serious, immediate threat, which general national security claims did not meet in the Pentagon Papers case.
- Step 3: Apply: embarrassment and vague claims of sensitivity are even weaker than the government's argument in 1971.
- Step 4: Conclude, and note the limit: the website likely can publish, though it could face consequences later if, for example, it published false and damaging claims.
Answer: The court would likely refuse the order. As with the Pentagon Papers, the government can't meet the heavy burden against prior restraint with claims of embarrassment or general sensitivity.
Common mistakes
- Saying the Court ruled that government secrets are never protected. It ruled that the government hadn't met the burden for prior restraint in this case.
- Confusing prior restraint with punishment after publication. The case was about blocking publication in advance.
- Placing this case in the Watergate story. The Pentagon Papers were about Vietnam; Watergate (1972–1974) came after.
On the exam
- New York Times Co. v. United States is a required case. In comparisons, look for a government attempt to stop publication in advance.
- Know the phrase “prior restraint” and be able to explain why it's treated as the worst kind of press restriction.
Connected topics
Videos
Check yourself
4 questions on 3.4 First Amendment: Freedom of the Press. Pick an answer to see if you got it, and why.
In 1971, The New York Times and The Washington Post began publishing excerpts from the Pentagon Papers, a classified government study of U.S. decision-making in the Vietnam War. The federal government went to court to stop further publication, arguing that it would harm national security. The Supreme Court ruled against the government, quoting an earlier case:
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
Summary written for this practice set; quotation from the per curiam opinion, New York Times Co. v. United States, 1971
Which of the following best describes the holding in New York Times Co. v. United States?
A federal agency asks a judge to stop a news website from publishing a leaked internal report, arguing that the report would embarrass agency leaders. Based on New York Times Co. v. United States, the judge would most likely
Only a free and unrestrained press can effectively expose deception in government. 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.
Justice Hugo Black, concurring opinion, New York Times Co. v. United States, 1971
Black's argument stresses which role of a free press?
Under the Court's approach in this case, which situation would come closest to justifying prior restraint?
0 of 4 answered