The Internet and access to information have radically changed the nature of the press. Its reach gives it unrivaled power to connect people and also presents significant risks. False and potentially dangerous information can reach countless numbers of people in an instant. Minors are especially vulnerable to the threat of an unregulated Internet.

In most free speech cases, the Supreme Court rules to protect speech. It also has protected free press in many of its rulings. In the 21st century, does the Internet and those who create its content have the same protection as the traditional press under the First Amendment? Should the web be governed under the same protections as the traditional press, or are different rules needed to counter the significant risks?

Free Press in a Democracy

“Our liberty depends on the freedom of the press,” Thomas Jefferson wrote, “and that cannot be limited without being lost.” The absolute preservation of a free press, as Jefferson’s posture signifies, assures a transparent and honest government. Free press can expose the actions of an evil state. In totalitarian counties today, you can see “state television,” that is the news about the government brought to you exclusively by the government. When Western journalists and news crews visit these regimes, they are welcomed and monitored by “government minders,” who keep the visitors’ cameras and eyes off anything that might make the country look negative.

Centuries after Jefferson’s quote, President Donald Trump referred to the press as “the enemy of the people” and repeatedly complained about “fake news.” At a campaign rally in February 2016 he said, “I’m going to open up our libel laws so when they [the press] write purposely negative and horrible and false articles, we can sue them and win lots of money.” Could he win those lawsuits? His past efforts, as well as the standards for freedom of the press, say no.

Press and Speech

The Court has not made much distinction between “speech” and “press” and ordinarily provides the same protective standards for both rights. “Speech” includes an array of expressions—actual words, the lack of words, pictures, and actions. An average citizen has as much right to free press as does a professional journalist. The First Amendment does not protect all speech, or all press, especially if communication invites danger.

Libel and “Breathing Space”

A charge of libel refers to false statements in print about someone that defames—or damages that person’s reputation. Much negativity can be printed about someone of a critical, opinionated, or even speculative nature before it qualifies as libel. American courts have typically allowed for a high standard of defamation before rewarding a suing party.

The main decision that defined the First Amendment’s protection of printed speech against the charge of libel was New York Times Co. v. Sullivan (1964). In 1960, a civil rights group, including Martin Luther King Jr., put an ad in the New York Times entitled “Heed their Rising Voices,” which included some inaccuracies and false information about a Montgomery, Alabama, city commissioner, L. B. Sullivan. Sullivan sued for libel in an Alabama court and won $500,000 in damages. The Times appealed, arguing that the First Amendment protected against slight mistakes and these should differ from an intentional defamation. The Supreme Court sided with the newspaper.

Uninhibited debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” the Court noted. The fear of an easy libel suit would stifle robust debate and hard reporting. Even false statements, therefore, must be protected “if the freedoms of expression are to have the ‘breathing space’ that they need … to survive.”

The standard to prove libel is therefore high. The suing party must prove that they were damaged and that the offending party knowingly printed the falsehood and did so maliciously with intent to defame. Public officials are less protected than laypeople and cannot recover damages for defamatory falsehoods relating to their official conduct unless they can prove actual malice—that is, reckless disregard for the truth. The Court later broadened the category of “public figure” to include celebrities such as movie stars, top athletes, and business leaders.

New York Times Co. v. Sullivan and subsequent decisions have generally ruled that to win a libel suit in a civil court, the suing party must prove that the offending writer either knowingly lied or presented information with a reckless disregard for the truth, that the writer did so with malicious intent to defame, and that actual damages were sustained.

Prior Restraint

The government also has no exclusive privilege of prior restraint- the right to stop spoken or printed expression in advance. This position was first declared in Near v. Minnesota and later reaffirmed in New York Times Co. v. United States (1971). Governments cannot suppress a thought from entering the marketplace of ideas just because most people see the idea as repugnant or offensive. A government that can squelch ideas is one that violates the very essence of a free democracy. The Court, however, has never suggested that its reverence for free expression means that all expression should be tolerated at all times under all conditions. There are exceptions that allow state and federal governments to limit or punish additional forms of speech.