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William & Mary Law Review




Wm. & Mary L. Rev.

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Part I of this Article will discuss defamation law with a focus on the Court’s decision in New York Times Co. v. Sullivan. This decision “constitutionalized” the common law tort of defamation and dealt a death blow to a series of lawsuits by southern government officials aimed at silencing the publication.14 The decision has since provided an essential foundation for press freedom for over fifty years. At the same time, because the decision did not grant the press (or the public generally) absolute immunity for the publication of defamatory information about matters of public concern, speakers potentially face years of distracting and expensive litigation, even if they ultimately prevail.

Part II turns to protections for the publication of national security secrets. In United States v. New York Times Co. (Pentagon Papers), the Court held that the executive branch could not prevent the press from publishing a damning study of the United States’s involvement in the Vietnam War. But this decision does not provide immunity for defamation or the publication or collection of national security secrets and leaves journalists—as well as their sources—exposed to civil and criminal liability.

Part III examines the Court’s failure to recognize constitutional protection for news-gathering activities. Although the Court has held that the First Amendment provides a broad right of access to criminal proceedings, this right belongs to the public and not the press. Furthermore, this decision stands as something of an anomaly in the Court’s right of access jurisprudence. One reason— although not the only one—for the Court’s reluctance to recognize a more extensive right of access is its unwillingness to give the right to the entire public as well as its inability to define the “press” in a meaningful way. With the enormous changes in our media environment in the last two decades, it seems highly unlikely that the Court will use the Press Clause to provide expansive rights of access.

Despite all of President Trump’s attacks and the public’s growing distrust of the press, the fourth branch continues to play an important role in checking government power and informing our democracy. It is less clear, however, whether the press will be able to continue to rely on the courts to provide these constitutional protections for this important work.

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