Censorship, Copyright, and Incitement


Journalists in the United States benefit from strong protections against government censorship that are rooted in the Free Press clause of the First Amendment. As such, journalists generally cannot be stopped from publishing even highly problematic information, from falsehoods to highly sensitive government documents. However, although journalists may be free to publish something, they can still face legal risks after publishing it.

In a similar vein, the First Amendment allows journalists (and other citizens) to advocate for a range of opinions, ideas, and actions — even those that run afoul of the law. And, the United States legal code permits journalists to make ‘fair use’ of copyrighted materials in their reporting, allowing them to both show and tell audiences about newsworthy affairs. However, such protections are not unconditional, and journalists must be aware of the legal framework in the U.S. in order to minimize their legal risks before and after publication.

Censorship and Prior Restraint

The Supreme Court has historically demonstrated a very strong aversion to government censorship of journalism, and has only permitted it in very limited circumstances. What we typically think of as censorship falls under the legal definition of prior restraint, which refers to an official government restriction of speech before it is published.

A landmark decision in this area was the case Near v. Minnesota (1931). Jay Near, who was the editor of The Saturday Press, had published a series of articles attacking several Minneapolis city officials for dereliction of duty. One of those officials sued The Saturday Press for engaging in “malicious, scandalous and defamatory” speech. The Minnesota state court agreed. It decided to ban any further publication of The Saturday Press under the Minnesota Public Nuisance Law — thereby effectively shutting down the publication. In a 5-4 decision, the Supreme Court ruled that Minnesota’s law was “the essence of censorship,” and further held that the government did not have the power to bar the publication of Jay Near’s writings in advance because it would constitute an impermissible prior restraint on expression. Such restraints, the court ruled, were only permissible in extreme cases, such as when publishing information would reveal crucial military information that would place troops at risk, when a publication contains obscenity, or when a publication may directly incite “acts of violence.”

Although such prior restraint wasn’t allowed, the court’s decision was clear in that it would not stop any individual from suing Jay Near or The Saturday Press after publication. Put another way, protection against prior restraint does not extend to protections against other legal risks that may arise from publication. In fact, some charges, such as libel, require a demonstration of harm — which may only be established after publication.

The Near decision was reinforced in another crucial case, New York Times Co. v. United States (1971), which is also known as the “Pentagon Papers” case. In that case, Daniel Ellsberg secretly made copies of a large, classified government study of the United States’ involvement in the Vietnam War and provided the documents to The New York Times. After several months of review, the Times began publishing a series of stories that included portions of the classified documents. President Richard Nixon’s administration, citing national security concerns, obtained a restraining order barring further publication of the Pentagon Papers. Following an emergency hearing, the Supreme Court, in a 6-3 decision, dissolved the restraining order, observing that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and that “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.”

Put another way, the Court ruled that it was up to the Nixon Administration to successfully prove that publication would result in inevitable, direct, and immediate peril to the United States — a high standard that it failed to meet when suing the Times. While the Pentagon Papers case does not offer journalists blanket permission to publish confidential documents, it did reinforce the high bar that the government must clear in order to stop something from being published in the first place.

It is important to note that these court decisions, and the First Amendment itself, only guard against government censorship. The owner of a journalistic outlet, or an editor within it, is well within their rights to refuse to publish a particular story. Similarly, a third-party platform (e.g., Facebook) or moderators within its groups are generally free to ban particular stories from being shared on their platform. Additionally, these decisions offer no obstacle to self-censorship, whereby journalists choose to not publish certain material for fear of reprisal. Self-censorship is not uncommon, especially when journalists fear alienating certain sources, and losing access to them, by publishing damaging information about those sources.

The Supreme Court has repeatedly ruled that copyright and free speech are compatible. In particular, it has ruled that while ‘facts’ cannot be copyrighted, the ways in which those facts are expressed can be copyrighted. For example, it is not possible to copyright the fact that Dr. Zamith gave a lecture about media law on a particular date. However, the exact expression, “Dr. Zamith spoke eloquently in a riveting lecture about media law that was met with great acclaim” may be copyrighted by the author. A practical consequence of this is that journalistic outlets cannot just use someone else’s original work without their permission — for example, by copying and pasting a competitor’s news story — even if they offer attribution to the original work by stating who produced it, or by linking to the original piece.

However, the Supreme Court has long been open to different ‘fair use’ doctrines — one of which became codified as law by the Copyright Act of 1976. The current doctrine allows portions of copyrighted products (e.g., an exclusive interview published by a competitor) to be published without their consent by someone else (e.g., in a competitor’s news article) if it ‘passes’ a four-part test. The four components of the test are: (1) the purpose and character of the use, including if it is for educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. There is no codified point system for this test. Instead, courts interpret the facts of a specific case according to this general guidance and issue a determination of whether the use ‘passed’ the test (and is therefore not in violation of copyright protections).

Copyright therefore provides journalists and journalistic outlets with a legal remedy when their work is republished without authorization, and fair use protections can be leveraged to allow journalists to include portions of copyrighted work, such as segments from an explosive book or citizen-recorded videos, in their reporting.

Incitement and Inflammatory Speech

The Supreme Court has ruled that speech or publication that advocates for illegal conduct, such as attacking an elected official or activist, is legally protected, unless that advocacy is likely to incite imminent lawless action. This means that abstract advocacy (e.g., writing that a particular politician ‘should be shot’) is protected, though specific calls to action (e.g., writing that people should gather at a particular time and place to shoot the politician) are less likely to receive protection.

A crucial Supreme Court decision in this area is Brandenburg v. Ohio (1969). In that case, Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to cover a KKK rally. Portions of the rally were filmed and showed men in robes and hoods, some of whom were carrying firearms and engaging in cross-burning. One of the speeches made reference to the possibility of “revengeance” against two specific racial and religious groups, as well as their supporters. Another speech advocated for those groups’ forced expulsion from the United States. Brandenburg was charged with advocating violence under Ohio’s criminal syndicalism statute, and he argued that his speech was protected by the First Amendment.

In a per curiam decision, meaning a decision that was not signed by individual justices but spoke for the Court as a whole, the Supreme Court ruled that such speech is protected because the “mere advocacy” of violence does not rise to the standard of “incitement to imminent lawless action,” which the Court has ruled is not protected by the U.S. Constitution. In particular, the decision helped establish the two-prong “Brandenburg test,” under which the government may only restrict speech if (1) the speech is “directed to inciting or producing imminent lawless action” and (2) the speech is “likely to incite or produce such action.”

Put another way, individuals — from opinion columnists to sources quoted by journalists — can speak, publish, and advocate freely unless it can be shown that they are putting others at clear risk. (Whether a journalist should quote certain individuals or give oxygen to problematic assertions is thus more often an ethical question.)

Key Takeaways

  • The Supreme Court has historically had a strong aversion to government censorship of journalists, and the bar for preventing something from being published is very high. However, just because something can be published does not mean that journalists are free from other legal risks after publication.

  • Facts cannot be copyrighted, but the ways in which journalists (and others) express those facts can be copyrighted. It is not enough to offer attribution. Unless a journalist is making ‘fair use’ of some copyrighted material, permission from the copyright holder is necessary.

  • Speech and publication may advocate for lawless behavior, so long as that advocacy is abstract or unlikely to produce imminent lawlessness. This covers both opinion columnists and advocacy-minded journalists, as well as the sources they quote.