Page 137 - Freedom in the world_Neat

Agency (CIA). Even in these situations, though, the courts have argued that it is incumbent
on the government to show why the press should not be allowed to publish.9
Defamation, libel, blasphemy, obscenity, and hate speech are not absolutely protected by
the First Amendment and can be subject to prosecution. However, in recent decades a
number of attempts at prosecution have been rejected by the Supreme Court, and the
grounds on which these cases may be pursued are currently narrow. In New York Times v.
Sullivan (1964), the Supreme Court ruled that public officials who sue for libel must prove
“actual malice” on the part of their critics, and subsequent rulings have extended this to
apply to all public figures.10 In Garrison v. Louisiana (1964), the same court ruled that
some criminal libel laws could be constitutional as long as actual malice was used as a test
and truth could be used as a defense.
In the years following these two key decisions, a number of criminal libel laws were
repealed or overturned in the states (there are no federal laws against libel or defamation),
though most states have civil laws against libel. In the 17 states that retained criminal libel
laws as of 2004, the statutes are rarely invoked.11 The last conviction occurred in Kansas
in July 2002, when a publisher and an editor were sentenced to fines and a year of
unsupervised probation after publishing an article that falsely accused local politicians of
residing outside the districts they represented.12 Legal conditions in the United States are
comparable to those in Western Europe, where all countries have civil libel laws and a
number also have criminal libel provisions. However, Western European practices diverge
noticeably from American law in that truth is less widely considered an absolute defense in
libel cases.
U.S. law also offers far more protection for blasphemy and hate speech than the laws in
most other democracies. Canada and practically every European country have laws against
hate speech, and a number have laws prohibiting blasphemy as well. In some of these
countries the laws are quite broad; in Denmark, for example, vaguely worded statutes
effectively give the government great discretion in deciding whether to
prosecute.13 Although the U.S. Supreme Court has ruled that—subject to caveats—state
and federal law may censor “obscenity,” the court formally rejected the sort of blasphemy
laws that exist in Europe in Joseph Burstyn Inc. v. Wilson (1952). And
since Brandenburg, the court has protected many kinds of hate speech (and behavior) and
has tended to reject laws that punish abusive, insulting, or offensive expression.
Historically, American journalists have also benefited from laws and jurisprudence that
protect their access to official information and to governmental and judicial proceedings. In
1966, Congress passed the Freedom of Information Act (FOIA) with the explicit purpose of
improving public access to government records. FOIA covers only federal agencies and
exempts nine categories of information, including national security material, trade secrets,
and privileged governmental communications.14A second federal law guaranteeing public
access to government meetings, called the Sunshine Act, was passed in 1976. The
Sunshine Act applies to the same agencies as FOIA and provides similar exemptions. All
state and local governments have their own precedents or legislation mandating public
access to most records, documents, meetings, legislative procedures, and lower-level court
proceedings. Generally, the U.S. Supreme Court has reinforced these rules in the judicial
arena. It has held that as a matter of First Amendment law, courtrooms should be open to
the press unless there is convincing evidence that publicity would preclude a fair trial, and
it has struck down many attempts to impose “gag orders” on the media.

Page 137 of 168