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Democracy Papers
The Role of a Free Media

By John W. Johnson

"When men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment."
                                        -- U.S. Supreme Court Justice
                                           Oliver Wendell Holmes
                                           in 1919

Democracy Papers

For a society to be considered truly democratic, there should be a high degree of protection accorded to the expression of ideas in published form, whether the medium is newspapers, magazines, books, pamphlets, motion pictures, television or, most recently, the Internet. The American experience over a period of two centuries offers an illuminating example of one nation's attempt to set ground rules for expression. Of course, these experiences are unique to the culture and history of the United States, but the general principles they elucidate have wide applications in other democratic societies.

The U.S. Constitution, the essential bedrock of the American governmental system, would not have been ratified by the original 13 states in 1791 without a set of 10 amendments, called the Bill of Rights, to protect individual freedoms. It was no accident that the right of free expression by the media was enshrined in the very first of these amendments. The First Amendment reads in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press." To the Founders, the men who drafted the Constitution and the Bill of Rights, the printed page -- generally in newspapers and pamphlets -- was the published media. Hence the term "press" in the First Amendment. Throughout American history, the freedoms of speech and press, linked as they are in the First Amendment, have likewise been intertwined -- both in the mind of the public and in the minds of judges called upon to decide cases dealing with published expression.

Perhaps the best way to appreciate the complex and evolving role of a free media in the United States is to examine the historical development of this concept through decisions by American courts. While the First Amendment guarantees a considerable measure of press freedom, it is the U.S. judicial system that has defined exactly what this concept means in practice. And it is the courts generally that have taken the idea beyond its 18th-century roots in English common law and protected this right against the forces in American society made uncomfortable by too much freedom of the press.

The Zenger trial and seditious libel

A 1734 trial of New York newspaper publisher John Peter Zenger offers an example of the general proposition that freedom of the press was not understood in the English colonies on the North American continent in the same way it is today. The colonial government of New York charged Zenger with seditious libel for printing an article brutally criticizing the colony's royal governor. Black's Law Dictionary defines libel as written communication that "tend[s] to expose one to public hatred, shame . . . contempt, ridicule, . . . or disgrace. . . ." Among other things, Zenger's paper had claimed that the governor erected courts without the consent of the legislature and arbitrarily denied members of the colony the right of trial by jury. Zenger, through his attorney, did not deny that he printed these charges. He simply asserted that he had the right to publish criticism of a public official, even criticism that held that official up to ridicule, as long as the criticism was truthful. In a landmark decision, the jury acquitted Zenger, and helped establish the principle that truth is a defense against charges of libel. But the jury verdict in the case did not change the English legal principle, powerfully enunciated by the distinguished legal writer William Blackstone in the late 18th century, that publishing "what is . . . mischievous" was a crime that could be punished.

In 1798, prompted by fear that the radicalism of the French Revolution might find its way across the Atlantic Ocean, the majority in the U.S. Congress passed the Sedition Act, making it a crime to "write, print, utter or publish . . . any false, scandalous and malicious writing" against the government. A number of individuals and newspapers were successfully prosecuted under this law. One was the publisher James Thomson Callender, who was charged with criminal libel for referring to President John Adams in 1800 as a "hoary-headed incendiary . . . whose hands are reeking with blood." Callender, an unpopular figure considered scurrilous even in those days of sometimes robust political invective, was convicted and sent to prison for several years. He was pardoned by Thomas Jefferson, shortly after the Virginian ascended to the presidency in 1801.

Libel in the 19th century

As the 19th century unfolded, libel gradually became more a civil matter than the subject of criminal proceedings. That is, instead of the government prosecuting writers who criticized those in power, prominent individuals began to take it upon themselves to institute suits in the courts to protect their own reputations.

Consequently, there were few judicial tests involving the rights of individuals vis-୶is the national government until the 20th century. The most important constitutional cases of the 19th and early 20th century did not involve freedom of expression; rather, they were tests of power between the states and the federal government, and litigation involving governmental attempts to regulate business. In those days, the long-standing American traditional of localism tended to minimize direct collisions between the national government and individuals.

In 1833, the U.S. Supreme Court -- the nation's highest court -- held that the Bill of Rights circumscribed only the national government from intrusion upon individual rights; states were not so restricted. This principle would allow states to continue to censor newspapers and other print media until well into the 20th century. So, in spite of the glowing language promising a free press enshrined in the First Amendment, for much of American history the nation's courts afforded inconsistent protection for men and women who demonstrated the temerity to criticize government. Following the 1833 decision, few cases involving freedom of expression made it to the Supreme Court until the World War I era. However, a cultural tradition of political freedom, and an increasing number of mass circulation newspapers and magazines, encouraged both writers and editorial cartoonists to push the limits of free speech throughout this period. Even Abraham Lincoln was a target of savage caricature by cartoonists; William Jennings Bryan, the turn-of-the-century populist politician, another.

Significantly, in the early years of the 20th century, "muckraking" journalists and writers, using national circulation magazines as their platform, engaged in withering, and widely read, exposes of corruption in business and political circles. These exposes brought about substantial political and regulatory change, helped establish the progressive movement as a powerful political force in the 20th century, and created a climate that would lead to the legal expansion of press freedoms several decades later.

A free press during wartime

In 1917, at about the time the U.S. entered World War I, Congress passed an Espionage Act that punished the unauthorized obtaining, receiving, and transmitting of defense information. The following year, a set of amendments to this law, generally known as the Sedition Act of 1918, imposed penalties on expression that might tend to benefit America's enemies. Prosecutions under this law ultimately led to a number of U.S. Supreme Court decisions concerning the free speech and free press clauses of the First Amendment. The most important of these cases, decided in 1919, involved prosecution of a man named Jacob Abrams. Abrams was accused of violating the Sedition Act because he wrote and distributed two leaflets criticizing President Woodrow Wilson and the American government for providing military support to attempts by the Russian Czar to suppress the Bolshevik Revolution. The two leaflets (one in English and one in Yiddish) were distributed only in a small part of New York City. Moreover, the criticism advanced by Abrams had a tenuous connection with the American conduct of the war against Germany. Nevertheless, Abrams' conviction was upheld by the U.S. Supreme Court. The majority opinion of the Court held that Abrams' conduct presented a "clear and present danger" to civic peace that could, thus, be punished by the government.

The "clear and present danger" test had been introduced by Justice Oliver Wendell Holmes in another World War I free expression decision of the previous year. However, in the case involving Abrams, Holmes dissented, implying that the Court's majority had misused his test for assessing the constitutionality of this form of free expression, and he asserted that society had little to fear from "the surreptitious publishing of a silly leaflet by an unknown man." The "clear and present danger" language has been used countless times by courts called upon in the last 80 years to review the constitutionality of verbal, written, and symbolic expression that criticized the government. Some legal scholars believe the test has become so malleable that it can be argued that the language suits almost any public policy position from total censorship to complete license of expression.

The World War I free expression cases illustrate an important point about the linkage of the free speech and free press clauses of the First Amendment. The U.S. Supreme Court has never clearly distinguished the terms "speech" and "press" because they are frequently joined in the facts of a case. Abrams, for example, was claiming a right to express his ideas freely through the medium of a printed leaflet. So he was making the case that his statement was protected by both the free speech and free press clauses of the First Amendment. As a general rule, courts do not bestow upon individuals who publish in newspapers or other media any more protection than that accorded to members of the public expressing ideas orally.

Two Supreme Court rulings advance press freedom

The use of the First Amendment as a constitutional principle to protect individual expression advanced substantially in 1925 in a case involving a Communist named Benjamin Gitlow, who had published and distributed a pamphlet that advocated the use of strikes and class action to advance the cause of socialism. New York State charged Gitlow with violating a state law that made it a crime to advocate an overthrow of the government. Although the U.S. Supreme Court upheld Gitlow's conviction, it nevertheless ruled that the First Amendment protections of free speech and free press were among those key individual freedoms that could not be restricted by either the states or the national government. The Court also cited language in the 14th Amendment, ratified in 1868, that "no State shall . . . abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Court reasoned that the framers of that amendment intended that the states would henceforth be bound to respect important individual freedoms, like the national government, and that speech and press were two such key freedoms.

Thus began the process of using the language of the 14th Amendment as a sort of legal lever to tilt Bill of Rights protections toward individuals when confronted by state power. Effectively overruling the 1833 decision of the Supreme Court, which held that the states were not bound by the Bill of Rights, the Gitlow ruling began a trend that would continue for more than 40 years, as other protections of the first ten amendments to the U.S. Constitution would be selectively incorporated so as to serve as protections for individuals against state as well as federal incursion. This trend tended to bolster free expression at the local level.

Perhaps the most important free press decision between the two world wars was a 1931 case involving the right of a state to restrain the publication of a notorious scandal sheet, the Saturday Press, published by J.M. Near, a man who gave voice to the worst nativist and racist passions of the 1920s. The Minnesota legislature, in 1925, passed a Public Nuisance Abatement Law that permitted a judge to shut down any publication that he deemed "obscene, lewd, and lascivious" or "malicious, scandalous, and defamatory." Soon after the enactment of the law, a state judge closed down the Saturday Press. On appeal, the U.S. Supreme Court, by a 5-4 vote, enunciated a constitutional defense of the long-standing American position, based on English common law, and accepted by the Founding Fathers, that there should be no "prior restraint" of the press. The Court ruled that, while it might be acceptable occasionally to punish someone for a publication that was especially venal, malicious, or libelous, it would take an extreme case -- such as a national security matter -- to stop a newspaper in advance from publishing a controversial article. Robert R. McCormick, the Chicago publisher who had helped fund the appeal by the Saturday Press, stated that Chief Justice Charles Evans Hughes's majority opinion in the case "will go down in history as one of the great triumphs of free thought."

"Public figures" and libel law

An important dimension of the increasing freedom of the U.S. press in the 20th century is the "public figure doctrine," developed by the Supreme Court in several interesting cases in the 1960s, 1970s, and 1980s. The principle underlying the doctrine is that an average person -- that is, someone who is not famous or whose name is not a household word -- has more protection from criticism by the media than does a public figure. A public figure, on the other hand, must endure the embarrassing and critical comments of the media, even if they are false, unless he or she can prove that the publisher of the expression acted with malice. For this purpose, "malice" is defined as issuing a publication that the writer, editor, or broadcaster knows to be false at the time of the publication. Malice can also be inferred if that writer, editor, or broadcaster acts with careless disregard of the truth or falsity of the assertions made. Most of the cases under the "public figure doctrine" turn on whether the individual who is claiming libel or defamation is, in fact, determined by the courts to be a public figure. Once someone is deemed a public figure, it is exceedingly difficult to prove that he or she has been libeled.

Perhaps the case that best epitomizes the "public figure doctrine" concerned an advertisement, paid for in the early 1960s by a group wishing to aid the cause of civil rights leader Martin Luther King, Jr. The ad referred to the fact that King had been harassed by local law enforcement officials throughout the South, including Montgomery, Alabama. The Commissioner of Public Safety in Montgomery, L.B. Sullivan, sued the New York Times for defamation, arguing that the ad contained some hyperbolic statements and factual errors that might cause people to think critically of him. The Court ruled that the Times had made honest, not malicious, mistakes in the ad and that Sullivan, as a public figure, could not recover damages from the Times. Over 20 years later, the Supreme Court was again asked to consider the possibility of libel against a public figure. Jerry Falwell, a well-known conservative minister, was the object of a "parody advertisement" in a sexually explicit magazine. The "facts" about Falwell in the ad were outlandishly false. Consequently, Falwell argued that his reputation had suffered great harm. The Court, however, found in favor of the magazine, maintaining that the freedom of the press permitted substantial latitude for cartoonists and those producing caricatures of public figures.

A hierarchy of protection

In issuing their many rulings on the freedom of speech and press, American courts over the years have generally accorded greater protection to political messages than other types of expression. This is not surprising, because American democracy was, in no small part, a child of the political criticism of the practices of the British rule over North America in the late 18th century. It is no accident that most of the cases discussed so far have concerned political expression. But if political expression is preferred, what forms of expression are lower in the hierarchy?

One form of expression considered lower by the courts is commercial speech. The Supreme Court has consistently ruled that advertising is protected by the First Amendment only if it is truthful. Thus, the hyperbole and minor factual errors that may be tolerated in political speech are not permitted judicial protection if they appear in the context of a TV commercial, such as one produced to sell mouthwash or sports utility vehicles. This is partly because commercial claims are easier to verify than political assertions. In addition, American courts have generally found that the strong motivation to make a profit by marketing goods and services outweighs any "chilling effect" that might result from government regulation.

Another form of expression that is even lower on the scale of judicial protection is obscenity. In 1957, in Roth v. U.S., the Supreme Court deemed obscenity and pornography to be "utterly without redeeming social importance," and thus unprotected expression. The problem with obscenity has largely been a matter of definition. One person's obscenity may be another person's idea of an artistic masterpiece. For some people, James Joyce's novel Ulysses is repulsively obscene; but a recent poll of literary intellectuals rated it the greatest work of literature written in English in the 20th century. Justice Potter Stewart spoke for most Americans in a mid-1960s case when he acknowledged that he might not be able to define obscenity, but, he added, "I know it when I see it."

Unfortunately, Justice Stewart's glib one-liner does not offer an effective legal standard to evaluate works of art. The Supreme Court has struggled mightily to arrive at such a standard. In 1973, the Court refined a three-part test for obscenity, and ruled certain forms of expression outside the bounds of constitutional protection if: 1) the average person, applying local community standards, would find the work taken as a whole to appeal to the prurient interest; 2) the work depicts or describes sexual conduct in a "patently offensive" way; and 3) the work lacks serious literary, artistic, political, or scientific value. Given this rather ambiguous standard, it is not surprising that the Court's rulings on obscenity in the media have not had a clear direction in the last 30 years. In many ways the Court's indecision reflects that of American society in general, torn between forces favoring complete free expression on the one hand and those of social conservatism on the other.

News gathering and the First Amendment

The process of news gathering that precedes the publication or broadcast of the news has also come in for occasional review by American courts. Reporters, the Supreme Court ruled in 1972, can be required to reveal confidential sources to grand juries. However, in 1991, the Court determined that the freedom of the press does not prohibit a state from bringing charges against reporters who breach a promise of confidentiality to their sources. American courts have generally held that judicial proceedings should be open to the public and press unless there is a compelling interest, such as a defendant's right to a fair trial, that cannot be ensured except by closing the courtroom. Perhaps it is the historical memory of the private trials of the 16th and 17th century British "star chamber" that makes American judges so hesitant to sanction closed trials. The Court has even upheld the right of state judges, if they see fit, to permit television cameras to record proceedings in their courts. There are occasions, however, when the rights of the media to report on the conduct of a trial have been deemed less weighty than the rights of a defendant. For example, in the interest of privacy, the identities of juveniles accused of crimes are generally shielded from scrutiny by the media.

Over the years, the United States, like other democracies, has seen its legal principles challenged by technological change. American courts have generally afforded greater protection for print media such as newspapers than broadcast media such as television. Thus, for example, the Supreme Court ruled in the late 1960s that individuals do not have an absolute constitutional right to communicate through broadcasting because the "electromagnetic spectrum" cannot accommodate all communicators. This rationale served as the basis for judicial rulings denying "equal time" for candidates for office to respond to statements made on television by other candidates. However, in light of the recent expansion of cable television and the ubiquitous Internet, courts appear to be moving towards placing broadcast media on the same legal footing as print media.

The Pentagon Papers

Probably the most important American case involving the media in the last half century is the so-called Pentagon Papers case. This dispute between the U.S. government and the New York Times, the nation's most renowned newspaper, offers a glimpse of many of the weighty First Amendment issues discussed previously, and it involves perhaps the most controversial political topic of the recent past, the American conduct of the Vietnam War.

The dispute had its origins in 1967 when Robert McNamara, the Secretary of Defense, created a task force to compile a history of the U.S. policy toward Vietnam in the period 1945-67. The task force was composed of personnel within the Department of Defense as well as individuals from other government agencies and some independent contractors. No interviews were conducted; all of the research was compiled from documents. The resulting report was massive, over 7,000 pages in length, and was completed in 1969. It became known as the Pentagon Papers. Only 15 copies were printed because the document was intended only for internal use by the Defense Department and other government agencies.

One of the contractors who had a minor role in creating the lengthy study was Daniel Ellsberg, a staffer for the Rand Corporation, a "think tank" devoted to the study of national defense issues. Ellsberg had his doubts about American policy in Vietnam, in part stimulated by what he had read in the Pentagon Papers. After failing to convince members of Congress to make the study public, Ellsberg secretly made another copy of the report and released it to journalists at the New York Times and the Washington Post. The Pentagon Papers contained little secret information, but some sections called into question the wisdom of American policies adopted towards Vietnam, both before and after the United States became involved in military hostilities in Southeast Asia.

In June 1971, the Times published two installments of the Pentagon Papers before the administration of President Richard Nixon requested a court injunction forbidding additional publication. A New York federal judge granted the restraining order, pending a full hearing on the case. This was the first time in American history that a U.S. court had stopped a newspaper, in advance, from publishing a particular article. It was a classic example of prior restraint. The case quickly made its way to the U.S. Supreme Court. After denying a request by the Justice Department for a closed hearing, the Court let the case be argued in public on June 26, 1971. The Court issued its decision a bare four days later. A six-member majority agreed to a short per curiam opinion (no author named) that essentially said that any appeal for a prior restraint carries a heavy constitutional burden and, in this instance, the Nixon administration had not met that burden. Because each of the six members of the majority coalition wrote separate opinions, it is difficult to identify what lawyers and jurists sometimes refer to as "the bright line" that illuminates the heart of a judicial ruling. About the only thing that can be said for certain is that the majority was not convinced that disclosing the information in the Pentagon Papers would have resulted in "direct, immediate, and irreparable damage" to national security. Most constitutional experts saw the Court ruling in the Pentagon Papers case as a Pyrrhic victory for freedom of the press, at best. The High Court did not find sufficient justification to halt publication, but it did accept the government position that a restraining order could be issued in anticipation of the offer of proof of harm accruing from publication. As a denouement to the case, the Pentagon Papers were eventually published by the Times, the Post and other newspapers throughout the country. No national security problems resulted.

A searchlight on government

In summary, the media have a history of testing the resiliency of the free speech and free press clauses of the First Amendment by challenging any attempts to restrict their coverage of politics and society, and by arguing passionately that the "public has a right to know." This is as it should be, since a free press -- even one that occasionally exceeds bounds of good taste -- is essential to the preservation of a democratic society. Thomas Jefferson considered such a press the best guarantor of freedom, and was willing to put up with its excesses in order to gain the benefits of a constant critique that can illuminate the activities of government.

Not all democracies share the same zeal as the United States for an unfettered press, and indeed even American courts, while tending to grant progressively more freedom to the media, have not invariably supported complete freedom of expression. To return to a principle enunciated at the beginning of this essay, however: For a nation to be considered truly democratic, it must be prepared to grant substantial protection to media expressing ideas. While the American record on this point has not been perfect, the strong tendency of what Justice Oliver Wendell Holmes characterized in 1919 as the American "experiment" in constitutional theory has been to favor an increasingly free expression of published ideas.

For Additional Reading

Zechariah Chafee, Free Speech in the United States (Harvard University Press, 1967)

Fred W. Friendly, Minnesota Rag: the Dramatic Story of the Landmark Supreme Court Case that Gave New Meaning to Freedom of the Press (Random House, 1981)

Leonard Levy, The Emergence of a Free Press (Oxford University Press, 1985)

Paul L. Murphy, The Meaning of Freedom of Speech (Greenwood Publishing, 1972)

Paul L. Murphy, World War I and the Origin of Civil Liberties in the U.S. (W.W. Norton, 1979)

Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (Viking Press, 1987)

S.J. Ungar, The Papers & The Papers: An Account of the Legal and Political Battle Over the Pentagon Papers (E.P Dutton, 1972)

About the Author:
John W. Johnson has served as head of the Department of History at the University of Northern Iowa since 1988. He is the author of Historic U.S. Court Cases: An Encyclopedia (2nd edition, 2001), The Struggle for Student Rights: Tinker v. Des Moines and the 1960s (1997), Insuring Against Disaster: The Nuclear Industry on Trial (1986), and American Legal Culture, 1908-1940 (1981). He is currently working on a book on privacy in American life.


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