In 1890, a prestigious law journal argued that "the press is overstepping in every direction the obvious bounds of propriety and of decency. "Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery," said the Harvard Law Review article (which proposed that courts recognize a right to privacy). Though the statement was set to print a century ago, it well describes what many observers see to be the condition of journalism in the United States today.
Under the aegis of "the public's right to know," contemporary journalists have thrown the glaring light of media scrutiny into many murky corners of life that have heretofore been considered quite private.
But did the public have a right to know that Arthur Ashe had AIDS? Was it necessary to identify Patricia Bowman as the woman accusing William Kennedy Smith of rape? Should the government have been permitted to restrain newspapers from publishing the "Pentagon Papers"? Questions such as these confront the press and the courts every day.
Assuming the public has a right to know, what is its origin? Is this an absolute right, or does it have limitations? If so, are these limitations legal or ethical? Is the public's right to know that a public official has accepted bribes the same as the public's right to know about his sex life?
Most journalists cite the First Amendment as the basis for this right. "Congress shall make no law . . . abridging the freedom of speech or of the press." It is true that the press is the only profession singled out for special protection in the Constitution. That does not mean, however, that this protection is absolute. Justice Black, no matter how hard he tried, was never able to persuade a majority of the Supreme Court that "no law means no law." Rather, it has been interpreted to mean, "Congress shall make some laws abridging freedom of the press."
Surprisingly, the Supreme Court's first real attempt to draw the line between speech protected by the First Amendment and unprotected speech occurred in 1917. Most of the cases involving the press have come in the last fifty years.
In determining what speech is protected, courts generally attempt to balance the competing interests at stake. They will weigh the governmental interest in restricting the speech against the First Amendment interest in permitting it. Among the more common governmental interests used to justify limiting freedom of speech are national security, a defendant's right to a fair trial, privacy, and consumer protection.
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