THE REPORT ON THE STATUS OF THE FIRST AMENDMENT

By Gene Policinski

For the First Amendment, 2014 marks significant milestones in and outside of the courtroom.

On March 9, 1964, journalists and others celebrated the 50th anniversary of the U.S. Supreme Court decision in New York Times v. Sullivan. That case set a very high bar for public officials to sue successfully for libel or slander.

For a half-century, the ruling had provided protection for citizens who are critical of government or public officials. It required officials to prove “actual malice,” that is, knowledge that the published facts are wrong or reckless disregard for the truth.

The Sullivan case involved a full-page advertisement in the Times by civil rights activists titled “Heed Their Rising Voices.” Portions of the ad had factual errors in describing activity by the Montgomery, Alabama, police against civil rights protesters and students. Although he was not mentioned in the ad, city commissioner L.B. Sullivan, who oversaw the police department, sued the newspaper and those who paid to place the ad, for defamation.

Sullivan’s lawsuit was successful in the lower courts, but the case eventually was appealed to the U.S. Supreme Court. In a 2001 symposium in Montgomery co-sponsored by Alabama State University and the First Amendment Center, Sullivan’s attorney, Roland Nachman, recalled that he was surprised by the ruling: “I said when I left for Washington that the only way I could lose the case [would be if] the Supreme Court changed the entire law of libel, and that’s exactly what the Supreme Court did.”

The Sullivan decision’s strong protection for statements about public officials regarding matters of public interest rests in what the opinion called the need for vigorous public debate, which would be stifled if speakers or writers had to worry that a single error might expose them to court action.

This bedrock principle in First Amendment law may even affect the current controversies over disclosures of National Security Agency covert surveillance and other confidential government data. Former NSA analyst Edward Snowden defends leaking the secret information, in part, by saying he did it to subject the agency and programs to public comment.

In 1964, a group of civil rights activists began a successful legal challenge to the renewal of a station’s license. This was the first challenge based on failure to offer programming to black residents in a station’s coverage area. Nearly 50 percent of the potential viewers of that station in Jackson were African-Americans, and those who challenged renewal of the license claimed the station denied black officials and spokespersons the Federal Communications Commission-required airtime to rebut station programming.

The case established for the first time that a citizen — not just those with an economic interest in the station – could pursue such a challenge. Eventually, ownership of WLBT passed to a black-majority ownership group. Of note: A number of news outlets reported in December that Roberts Broadcasting, a black-owned media company, will complete a deal this year to sell its three remaining TV stations to ION Media Networks. Thus, no single black-owned full-power TV station will exist in the U.S.

A decision about government regulation of the Internet may prove to be the court action this year with the longest legacy. In January, the U.S. Supreme Court tossed out current FCC regulations on “net neutrality,” a complex issue involving so-called broadband providers who control electronic traffic on the Internet, but affirmed the agency can regulate the Web as it does other forms of electronic communication.

On Jan. 22, thousands of anti-abortion demonstrators rallied on the National Mall and marched to the U.S. Supreme Court – using First Amendment rights of speech, assembly and petition – on the 41 st anniversary of the court’s landmark 1973 Roe v. Wade decision. In that decision the court upheld a woman’s right to an abortion based on a right to privacy.

A free press flap at the White House extends into this year. News organizations and White House photographers hope that a “working group” announced

in December by David Boardman, president of the American Society of News Editors, will be able to work out a controversy over access to administration events. Late in 2013, news media groups began complaining to press secretary Jay Carney that official photographers were being admitted to large numbers of events from which the press was excluded.

In the U.S. Supreme Court:

McCullen v. Coakle, argued in January, involves a Massachusetts law that creates a 35-foot zone around the entrances and driveways to facilities where abortions are performed. No one may be inside those zones and speak to women seeking treatment except staff of the facilities, police and people just passing through the zone. Critics say the law violates the First Amendment’s protection against government censorship of speech for content, since the effect of the law has been only to limit the speech of anti-abortion advocates. Officials say the law is valid, a “time, place and manner restriction” regarding public safety, citing prior violence around such institutions.

My colleague Charles Haynes, director of the Newseum Institute’s Religious Freedom Center, notes two cases in which arguments will be heard in March: Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. v. Sebelius. He writes that the cases involve challenges to the Affordable Care Act requiring for-profit businesses to provide coverage for contraception in health insurance plans. Hobby Lobby and Conestoga Wood are private companies owned by deeply religious families — evangelical and Mennonite respectively — who believe that life begins at conception. Refusal to follow the Act could mean millions of dollars in fines.

McCutcheon v. Federal Election Commission challenges limits on campaign contributions to multiple candidates in an election cycle. If the challenge is successful, it will rock the concept of such limits as a means of fighting potential corruption that was established in the landmark 1976 decision in Buckley v. Valeo.

Town of Greece v. Galloway involves prayers at the beginning of local town board meetings in Greece, New York. In 1983, in Marsh v. Chambers, justices said legislatures could hire chaplains to open sessions with a prayer without violating the First Amendment’s Establishment Clause. Critics say the board overwhelmingly has chosen Christian ministers to offer such prayer. Supporters argue the pattern simply represents the community’s religious makeup and history.

United States v. Apel, in which a long-time demonstrator is challenging the extent of the government’s ability to set “no protest zones” at the entrances to military installations.

On Jan. 27, the Court said in Air Wisconsin v. Hoeper — in an echo of Sullivan — that an airline is protected from a claim of defamation when making some errors in filing safety reports, except if made with reckless disregard of the truth. The challenge had come from a former employee and involves a report with some factual errors about the staff. The author is senior vice president and executive director of the First Amendment Center. He is co-author of the weekly syndicated newspaper and online column, “Inside the First Amendment,” Policinski began his career in Indiana, where he worked as a newspaper reporter and later as state bureau chief for Gannett News Service. In 1980 he became a correspondent in the GNS Washington bureau, reporting on Congress, politics and other issues. In 1982 he was named Washington editor of USA Today during its development, and he held that post when it launched on Sept. 15. In 1983 he was named a Page One editor. In 1985 he was named deputy managing editor/sports and later managing editor/sports. He is the founding editor of USA Today Baseball Weekly (now Sports Weekly). From 1991 through 1993, he was the on-air host of three news, sports and information programs on USA Today Sky Radio.