opinion

Preserve freedom of the press

Fifty years ago this month, the Supreme Court handed down one of its most celebrated defenses of the free press in The New York Times v. Sullivan. In its unanimous decision, the court referred to growing threats against the news media and the need to limit liability to allow them to perform their unique constitutional function. The threats in 1964, however, now seem almost quaint in comparison with those faced in 2014.

In 1964, the United States was viewed as the world’s leading protector of press freedom. Now, America is viewed as a growing menace to press freedom. In this year’s World Press Freedom Index by the respected Reporters Without Borders, the U.S. ranked 46th in the world, behind Lithuania, Latvia, Romania, Czech Republic, Ghana, South Africa and El Salvador, among others.

New York Times v. Sullivan dealt with a defamation lawsuit by Montgomery, Ala., public safety commissioner L.B. Sullivan, who objected to errors in an ad concerning civil rights abuses. He won a $500,000 award under Alabama law.

The Supreme Court saw civil liability as creating a chilling effect on reporters, resulting in self-censorship that is just as stifling as direct censorship. Wiping out the award, the justices sought to give the free press “breathing space.” In his concurrence, Justice Hugo Black warned 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 imminence and enormity of (the) threat” to press freedom the court warned of in 1964 pales in comparison with today’s threats.

While courts were highly sympathetic to the news media in reporting on civil rights, that sympathy evaporated when the subject went from figures such as Alabama segregationist Bull Connor to Osama bin Laden. Both the Bush and Obama administrations challenged the distinction between journalists and other people who receive classified information. The Obama administration placed Associated Press reporters under surveillance and, in 2010, named Fox News correspondent James Rosen “an aider, abettor and/or co-conspirator” for his work with a whistle-blower.

If that seems perfectly Nixonian, it is actually perfectly Obamian. While President Nixon was denounced for his use of the Espionage Act of 1917, Obama has brought twice the number of such prosecutions of all prior presidents under the act. Julian Assange, the publisher of the WikiLeaks material, is now hiding in an embassy in London, and the administration is seeking an absurd 105-year sentence against freelance journalist Barrett Brown for linking to hacked e-mails and other leaked information.

At one time, virtually every local news organization had investigative units that went under cover to expose abuses or corruption. Then, in 1999, the federal appellate court in Virginia ruled against ABC in an exposé on unsanitary conditions at a Food Lion store. While reducing the damages, it held that the news media was not protected any more than ordinary citizens in committing fraud or trespass.

Reporters are also still facing prison for protecting confidentiality. Recently, the incarceration of reporters led to renewed demands for a federal shield law for reporters protecting confidential sources. However, Congress used the watered-down law to actually exclude some classes of the growing “new media,” such as bloggers, from any protection.

Since 1964, courts have proved 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 -- losing the unique function (and protections) accorded journalists. New York Times v. Sullivan affirmed a distinct role -- and the need for distinct protections -- for journalists. Federal courts have steadily eroded that distinction.

Ironically, we are living through one of the most inspiring periods for journalism. Neither the courts nor Congress revealed abuses ranging from torture programs to warrantless surveillance to secret prisons. The only moving part fully functioning in this system is the free press.

The question is whether in another 50 years, citizens will even recognize the type of journalism protected by New York Times v. Sullivan.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.