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The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As written, the 1st Amendment restriction covers Congress and not state legislatures. It also does not define the freedoms; instead, it restricts the federal government from abridging certain rights.

Some argue that this was a mistake and that the 14th Amendment extended protection of all these freedoms to state government. But the 14th Amendment makes no explicit mention of freedom of the press. Are there authoritative sources that hold that the 14th Amendment applies to freedom of the press? I'm thinking about things like court cases... Citations in any answers, please.

After evaluating historical quotes that suggest the wording of the 1st Amendment was no mere mistake, I ask the question. It seems probable the founding fathers expected the First Amendment to apply exclusively to the Federal government, particularly about freedom of the press.

For example:

"The States... retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed." --Thomas Jefferson: Draft of Kentucky Resolutions, 1798. ME 17:381

and

"The power to [restrain slander] is fully possessed by the several State Legislatures. It was reserved to them, and was denied to the General Government, by the Constitution, according to our construction of it. While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so. They have accordingly all of them made provisions for punishing slander which those who have time and inclination resort to for the vindication of their characters. In general, the state laws appear to have made the presses responsible for slander as far as is consistent with their useful freedom. In those states where they do not admit even the truth of allegations to protect the printer they have gone too far." --Thomas Jefferson to Abigail Adams, 1804. ME 11:51

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    "The press" is not a special group. The press are merely just people who report things. Why would there be a special provision for those people? They, as ordinary people, have 1st amendment protection. The 14th says that no state can limit guaranteed rights, free speech included.
    – acpilot
    Aug 14, 2021 at 22:26
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    @ACPilot, I would tend to disagree. The key distinction I think between the people and the media becomes the matter of profit motivation.
    – Burt_Harris
    Aug 14, 2021 at 22:36
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    Haha. I agree! But that does not make them a special class of "free speakers." They are still like all other normal people, it's just their job to transmit accurate context and information to their customers (which appears to be quite difficult for many of them). I think we agree that being a "journalist" does not elevate a person to a special status. Free speech is free speech, no special or imaginary qualifiers needed.
    – acpilot
    Aug 15, 2021 at 3:23
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    My understanding is that "freedom of the press" actually refers to the device, more broadly it guarantees that not only is there a right to speech but also a right to use technological means to disseminate and propagate that speech.
    – IllusiveBrian
    Aug 15, 2021 at 4:05
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    Almost everyone is released without charges! There are sometimes some special permissions granted to press but they have no extra rights. They're not a protected class, nor should they be.
    – acpilot
    Aug 24, 2021 at 15:17

1 Answer 1

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Modern jurisprudence on this issue is that the entire First Amendment is incorporated into the Fourteenth Amendment. Based on some research Near v. Minnesota seems to be the seminal case incorporating freedom of the press. From the opinion:

  1. Liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.

This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.

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  • Very relevant, thank you. I note however that it says "Liberty of the press is not an absolute right, and the State may punish its abuse. P. 283 U. S. 708." The ruling seems to be one about due process and the prior restrain imposed by contempt provisions in the law. I'll read further.
    – Burt_Harris
    Aug 14, 2021 at 22:40
  • @Burt_Harris That's true of freedom of speech as well, states and the federal government can criminalize and allow civil remedy for some forms of speech like defamation but prior restraint is usually unconstitutional. As I understood your question it was just whether or not freedom of the press is incorporated like freedom of speech is.
    – IllusiveBrian
    Aug 14, 2021 at 23:06
  • @Burt_Harris The federal government is only more restricted than states in that there are theoretically fewer areas of law they are allowed to legislate in, so most normal limitations on speech (e.g. threats) are wholly within the realm of state legislature jurisdiction (or left to the federal territories to regulate themselves). There are some federal speech laws though, e.g. broadcasting obscene language over a radio.
    – IllusiveBrian
    Aug 14, 2021 at 23:19
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    @Burt_Harris For what it's worth, all applications of the Bill of Rights to the states turn on due process under the 14th Amendment. That's the mechanism the courts use, for reasons that presumably made sense to someone at some point. Even if the case has nothing to do with procedures, courts treat a law that violates "fundamental rights" (which is not quite identical to violating the Bill of Rights but is closely related) as a due process violation.
    – cpast
    Aug 15, 2021 at 17:21
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    @Burt_Harris If it is more comfortable to think about it this way, the 14th Amendment incorporation doctrine is a legal fiction by which the court evaded the fact that the Bill of Rights only applies to the federal government. Even though the 14th Amendment doctrinally is what made it so, incorporation didn't really start to happen in earnest 'til the 1910s, about half a century later. The Privileges and Immunities Clause would have been a more natural approach but the Slaughterhouse cases (motivated by pro Jim Crow SCOTUS justices at the time) and other prior case law precluded that solution.
    – ohwilleke ♦
    Aug 16, 2021 at 20:42

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