The language of the First Amendment regarding freedom of speech and the press seems pretty absolute: “Congress shall make no law … abridging the freedom of speech, or of the press.”

But the reality has always been more complicated. In the early years of the republic—only a decade after the adoption of the First Amendment—a federal law allowed prosecutions for criticism of President John Adams and his government. During the Civil War, the government exercised control over the telegraph lines in an attempt to limit reporting of Union losses and of dissention in Congress and in various regions. And while government interference with the media has become rare since the U.S. Supreme Court’s ruling in the Pentagon Papers case in 1971, a prior restraint was issued against The New York Times in December 2021, and remains in force (see below). 

The U.S. Press Freedom Tracker has tracked incidents of all types infringing on press freedom since its start in 2017. In 2021, the Tracker recorded a large number of incidents, including the following:

• 142 assaults of journalists, including at least 16 assaults associated with the Capitol riot on Jan. 6, 2021;
• 59 arrests and detainments of journalists; and
• 36 incidents in which journalists’ equipment was intentionally damaged.

None of these incidents were in South Carolina.

The 2021 totals are actually less than in 2020, during which the tracker recorded 358 assaults, 123 arrests/detainments and 87 incidents of damaged equipment. Many of these occurred at protests and rallies stemming from the murder of George Floyd or the 2020 election. (A reporter was assaulted in Charleston that year, but it apparently had nothing to do with his job.)

But the 2021 numbers in each of these categories is higher than all prior years of the tracker’s data combined.

While these incidents are troubling for First Amendment rights, they are also almost always short-lived. For example, journalists who are arrested are almost always released and not charged. And these threats pale in comparison to countries where journalists are routinely jailed or killed. In fact, the Committee to Protect Journalists reported that 293 journalists worldwide were jailed for their work, a record since that organization began tracking in 1992.

No journalists have been killed because of their jobs in the U.S. since the mass shooting at the Capital Gazette in Annapolis, Md. in 2018, which killed four reporters and an advertising employee, and injured two others. The shooter, who had filed an unsuccessful libel suit against the newspaper, was sentenced to multiple life terms.

But the incidents recorded for 2021 and prior years by the U.S. Press Freedom Tracker show that First Amendment rights for the press should not be taken for granted, and that vigilance is required to ensure that the freedoms it enshrines are protected.

Prior Restraint Continues: The Nov. 19 order barring The New York Times from publishing material about Project Veritas remains in place, making it one of the longest-lasting prior restraints on the press in U.S. history.  The order barring The New York Times from publishing the Pentagon Papers lasted only 15 days in 1971 until the U.S. Supreme Court held it unconstitutional. The 1979 order barring The Progressive magazine from publishing an article describing how the hydrogen bomb works was in effect for seven months until various newspapers published citations to the source material, leading the government to drop the case and an appeals court to vacate the order.

While the order itself is troubling, what’s more concerning is the lackadaisical attitude of the courts. An appellate court rejected an emergency appeal filed by the Times on Nov. 19, the day after the order was issued. Then the judge who issued the order took until Christmas Eve to uphold his order, and also ordered the Times to turn over or destroy the disputed material. An appeals court held on Dec. 28 that the Times could retain the disputed material, but otherwise kept the gag order in place. The case is now before the appeals court, with a wide variety of groups supporting the Times.

But the mere fact that this order has persisted for two months now is troubling in itself, even if it is expected under U.S. Supreme Court precedent that the order will eventually be vacated.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.