Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Supreme Court has clarified that the relaxed First Amendment standards allowing greater regulation of broadcast and (to a lesser extent) cable television do not apply to newspapers, telephone communications, or the internet. Looking first at newspapers, the Court was unanimous in holding void under the First Amendment a state law that granted a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper.1 Granting that the number of newspapers had declined over the years, that ownership had become concentrated, and that new entries were prohibitively expensive, the Court agreed with proponents of the law that the problem of newspaper responsibility was a great one. But press responsibility, although desirable, “is not mandated by the Constitution,” whereas press freedom is. The compulsion exerted by government on a newspaper to print what it would not otherwise print, “a compulsion to publish that which ‘reason tells them should not be published,’” runs afoul of the free press clause.2
The Court expressly distinguished the broadcast medium from telephone3 and internet4 communications in ruling unconstitutional two different statutes prohibiting certain transmissions of indecent messages. A 2017 opinion went so far as to equate the internet with streets or parks, historically some of the most important—and constitutionally protected—forums for the exercise of First Amendment rights.5
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Footnotes
- 1
- Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974).
- 2
- Id. at 256. The Court also adverted to the imposed costs of the compelled printing of replies but this seemed secondary to the quoted conclusion. The Court has also held that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees. Although a plurality opinion to which four Justices adhered relied heavily on Tornillo, there was no Court majority consensus as to rationale. Pacific Gas & Elec. v. Pub. Utils. Comm’n, 475 U.S. 1 (1986). See also Hurley v. Irish-Am. Gay Grp., 515 U.S. 557 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).
- 3
- Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 127–28 (1989) (noting the previously recognized “'unique’ attributes of broadcasting,” primarily the problem of an unwilling captive audience, were not present in the context of dial-in services (quoting FCC v. Pacifica Found., 438 U.S. 726, 762 (1978))).
- 4
- Reno v. ACLU, 521 U.S. 844, 868–69 (1997) (saying the factors justifying greater regulation of broadcast “are not present in cyberspace” ).
- 5
- Packingham v. North Carolina, 582 U.S. 98, 104 (2017). See also Amdt1.7.7.1 The Public Forum.