The government doesn’t dictate media here

Published Jan. 2019

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

On Jan. 6, 60 Minutes aired an interview with Egyptian President Abdel Fattah el-Sisi with two notable revelations: el-Sisi denied that his country has political prisoners, despite documentation; and he confirmed prior reports that Egyptian and Israeli forces have coordinated in airstrikes against an Islamic insurgency in the northern Sinai.

Before the interview, el-Sisi’s office had asked to receive the questions that he would be asked. 60 Minutes refused, and the interview proceeded. But immediately after the interview was recorded, the Egyptian government requested that CBS not air the interview. Again, CBS refused.

el-Sisi’s regime is not the only government that has tried to suppress sensitive information. Earlier this month at the request of the Saudi government, Netflix made an episode of comedian Hasan Minhaj’s show “Patriot Act” inaccessible in Saudi Arabia after he criticized Crown Prince Mohammed bin Salman for his apparent approval of the killing of dissident journalist Jamal Khashoggi and for Saudi Arabia’s role in war atrocities in Yemen. And a court in Myanmar upheld the convictions and seven-year prison sentences of two Reuters journalists who reported on the slaughter of the country’s Rohingya minority.

Even countries recognized as democracies have seen recent restrictions on disclosure of certain information. New Zealand’s justice minister recently admonished Google after it revealed the identity of the man charged with murdering a 22-year-old backpacker in a “What’s Trending in New Zealand” e-mail update. New Zealand law allows for the suppression of the names of criminal defendants in certain cases. Meanwhile, France and several other countries have passed laws or taken other action to stem false news reports.

In the United States, of course, the First Amendment generally keeps the government from stopping or punishing revelations that public officials find embarrassing or deem to be harmful. Most famously, in 1971 the U.S. Supreme Court held that the federal government could not stop The New York Times, the Washington Post and other newspapers from publishing stories based on and excerpts of the Pentagon Papers, a classified history of American involvement in Vietnam up to the Vietnam War. While six justices agreed with this result, they differed on their reasoning. In his concurring opinion, Justice Hugo Black wrote, “[W]e are asked to hold that … the Executive Branch, the Congress, and the Judiciary can make laws … abridging freedom of the press in the name of ‘national security.’ … To find that the President has ‘inherent power’ to halt the publication of news … would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’”

The end result of the Pentagon Papers case and other cases is that the government must have a compelling reason for any prohibition on speech, and that the restriction must be “narrowly tailored” to achieve that interest.

While this standard has prevented most government attempts to limit speech in the United States, there have been a few cases in which such restrictions have been imposed by courts. In 1979, a federal trial court in Wisconsin issued a temporary injunction barring The Progressive magazine from publishing an article detailing the mechanics of the how the hydrogen bomb works, even though the article was compiled from unclassified, publicly-available sources. The case was dropped and the article was published after other publications published much of the information barred by the injunction against The Progressive. And in an often forgotten case, a federal court issued a temporary order in 1990 barring CNN from airing tapes it had obtained of former Panamanian President Manuel Noriega speaking with his lawyer during his narcotics trafficking case. The order was upheld by a federal appeals court, and the U.S. Supreme Court denied review of the case. CNN aired the tapes while the appeal was pending, and was later held in contempt, after which it apologized.

While government efforts to stop the press from publishing are rare in the United States, there are occasional instances of this occurring. Last June, the press secretary for the Department of Homeland Security called a journalist who solicited tips about the press secretary on Twitter, telling him to stop doing so. And last January, an attorney for President Trump sent a letter demanding that writer Michael Wolff not release his book, “Fire and Fury.” Trump also mused about revoking press credentials of media who report “fake news,” and the White House actually did revoke CNN reporter Jim Acosta’s press pass for a few days.

Still, media in the United States face these issues much less often than in other countries. That is the legacy of the First Amendment, court decisions like in the Pentagon Papers case, and the political culture and values of the United States. While there have been periodic threats to the principle that the media are free from prior restraints, this core idea has persisted. Unlike Egypt and many other countries, in the United States the government does not control what appears in the media.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 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.

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