190 The media and politics
armed forces’. The Acts were upheld by the Supreme Court, which held that
free speech had never been an absolute right (Schenck v. United States, 1919).
However, it was in this case that Justice Wendell Holmes formulated the test
which was to become the basis of later decisions of the Supreme Court and
provided protection for press freedom and for free speech generally. Holmes
argued that restrictions on freedom of speech and the press could be justi-
fied only if there was a ‘clear and present danger’ that the words used would
‘bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree.’ During the Second World War and after-
wards the record of the protection of freedom of the press was much better
than in the earlier conflict, and in 1971 the Supreme Court decided a case of
great importance for the freedom of the press. Daniel Ellsberg, an employee
of the Department of Defense, leaked to the press what came to be called
the ‘Pentagon Papers’. These papers were in fact a 7,000-page history of the
Vietnam War, a top-secret internal document of the Department including
many classified documents. The New York Times began to publish excerpts
from the documents and the federal government attempted to prevent fur-
ther publication by obtaining an injunction. In the case of New York Times v.
US, the Supreme Court ruled that the federal government could not prevent
publication of the documents.
Having ruled that the protection afforded to the press by the First Amend-
ment against actions of the federal government applied also against the
actions of state and local governments, the Supreme Court in the 1960s
turned to the ways in which state and local authorities limited the freedom
of expression. The Court overruled a Massachusetts law used to declare an
eighteenth-century novel, Fanny Hill, obscene and to ban it (Memoirs v. Mas-
sachusetts, 1966). Perhaps the most important decision for the press, however,
concerned the law of libel. The law of libel is much less strict in the United
States than in English law. In English law the truth of an accusation is the
critical point at issue in a libel case; to justify a potentially defamatory state-
ment the publisher has to show it to be true. In the United States, until
1964, the law of libel was considered to be a matter exclusively for the states,
but in that year in the case of New York Times v. Sullivan the Supreme Court
ruled that a public official who had been criticised concerning his official
conduct could not recover damages for libel unless it could be shown that
the publisher had been guilty of ‘actual malice’ in making the accusation.
Showing that the facts were false was not in itself sufficient to win a case
for libel. This judgement allowed journalists to be openly critical of public
figures without fear of libel actions, although the Court later narrowed the
journalist’s privilege somewhat by requiring that the publication complained
of must involve a matter of public concern, if it was to escape the penalties
of the law of libel.
Journalists feel strongly that they should be able to protect the sources on
which they rely for information, much of which may be given on the basis of
confidentiality. When they come under pressure to reveal their sources, par-