First Amendment, Freedom of the Press: Its Constitutional History and the Contempory Debate - Softcover

Softcover

ISBN 10: 159102563X ISBN 13: 9781591025634

Publisher: Prometheus, 2008

Synopsis

The press in the United States is freer than in any other country in the world, and virtually any in history. American courts give critics of society and government extraordinary freedom to disseminate views that are unpopular, subversive, and even hateful. How did freedom of the press evolve over the centuries, what values does American press freedom claim to serve today, and what challenges will this right face in the twenty-first century? These are some of the important questions addressed in this scholarly but accessible volume on one of our most important freedoms guaranteed by the First Amendment. Award-winning legal scholar Garrett Epps has selected significant historical and contemporary articles in addition to a sampling of key cases on freedom of the press in this outstanding collection. Beginning with a history of the idea of press freedom in England and America, he includes classic essays by John Milton, Thomas Jefferson, and John Stuart Mill, among others. A selection of landmark cases follows, which span the twentieth century and include such major issues as censorship vs. national security, reporters' protected sources, the definition of obscenity, and other issues. A section of contemporary essays includes contributions by Justice Hugo Black, Justice Potter Stewart, Alexander Meiklejohn, Robert Bork, and others. In conclusion, Epps offers brief selections from other cultures on freedom of the press and he examines the unprecedented challenges to a free press in the twenty-first century from a global Internet culture that allows information to cross all borders and makes the definition of journalism fuzzy.

About this title

About the Author

Garrett Epps (Eugene, OR) is the Orlando John & Marian H. Hollis Professor of Law at the University of Oregon School of Law. He is the author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America; To an Unknown God: Religious Freedom on Trial; two novels; and many scholarly articles.

Excerpt. © Reprinted by permission. All rights reserved.

The First Amendment FREEDOM OF THE PRESS

Its Constitutional History and the Contemporary Debate

Prometheus Books

Copyright © 2008 Garrett Epps
All right reserved.
ISBN: 978-1-59102-563-4

Contents

Series Editor's Preface David B. Oppenheimer..........................................................11Acknowledgments........................................................................................15Introduction Garrett Epps.............................................................................17Areopagitica John Milton..............................................................................29"An Apology for the Printers" Benjamin Franklin.......................................................40"An American 'Cato' Defends Criticism of the Government" "Cato".......................................46"Sentiments on the Liberty of the Press" Andrew Bradford..............................................52Andrew Hamilton Defends John Peter Zenger Andrew Hamilton.............................................57"Libels; Liberty of the Press" William Blackstone.....................................................65"The Federalist No. 84" Alexander Hamilton............................................................68Reply to the Pennsylvania Minority Noah Webster.......................................................71"Letter to Edward Carrington" Thomas Jefferson........................................................74"The Virginia Report of 1799" James Madison...........................................................76From Democracy in America Alexis de Tocqueville.......................................................87Contempt of Court: Patterson v. Colorado...............................................................99Publishing Dissenting Views in Wartime: Frohwerk v. United States......................................103"Prior Restraint": Near v. Minnesota...................................................................107The Press and the "Taxes on Knowledge": Grosjean v. American Press Company.............................115The End of Seditious Libel: New York Times v. Sullivan.................................................121Broadcast Licensees and "Fairness": Red Lion Broadcasting Company v. FCC...............................133Censorship and "National Security": New York Times v. United States....................................141Is There a "Journalist's Privilege"?: Branzburg v. Hayes...............................................151Narrowing Obscenity: Miller v. California..............................................................164Newspapers and "the Right of Reply": Miami Herald v. Tornillo..........................................170Free Press and Fair Trial: Nebraska Press Association v. Stuart........................................176Reporting on Judicial Discipline: Landmark Communications, Inc. v. Virginia............................188Prior Restraint and the End of the World: United States v. Progressive, Inc............................195"Pornography" and Women's Rights: American Booksellers Association, Inc. v. Hudnut.....................203Offensive Parody: Hustler Magazine v. Falwell..........................................................210Access to Criminal Trials: Richmond Newspapers, Inc. v. Virginia.......................................216Promises of Confidentiality as "Contracts": Cohen v. Cowles Media......................................226Free Speech on the Internet: Reno v. American Civil Liberties Union....................................233"The Bill of Rights" Hugo L. Black....................................................................245From Toward a General Theory of the First Amendment Thomas Emerson....................................256"Neutral Principles and Some First Amendment Problems" Robert H. Bork.................................272"Or of the Press" Potter Stewart......................................................................281"The Media That Citizens Need" C. Edwin Baker.........................................................286From the preface to Emergence of a Free Press Leonard W. Levy.........................................300"Rethinking Prior Restraint" John Calvin Jeffries Jr..................................................307"Or of the [Blog]" Paul Horwitz.......................................................................322Constitution of the United States of America...........................................................341Amendments to the Constitution.........................................................................357

Introduction

Garrett Epps

The American law of press freedom is an international and historical anomaly. Even today, during a protracted and frightening state of war, the press in this country remains freer than any press in the world, or virtually any in history. Almost alone among legal systems in democratic nations, American courts give strong legal protection to "hate speech" such as Holocaust denial (banned in most countries and arguably illegal under international human rights norms), to scurrilous denunciations of public officials, and to uncensored publication of news that the government claims to find an immediate and serious threat to national security.

After a complex historical evolution over the past two hundred years, America has taken the English common-law concept of "the freedom of the press," which meant almost solely freedom from prior restraint, and transformed it into a set of institutional protections that gives critics of society and government extraordinary freedom to disseminate views that are unpopular, subversive and even just plain hateful. Though support for the institutional media waxes and wanes, most Americans seem reasonably content to allow them to function freely.

How did we get here? What are the historical roots of "the freedom of the press"? What were the key legal events in its transformation from "publish at your peril" to "uninhibited, robust, and wide-open"? What role did journalists themselves play in this process, and how important was the contribution of courts and lawyers? Does American press freedom serve as an example to the world?

These questions interest me at two levels, both of which I have tried to address in the anthology that follows. In my current life, I am a legal scholar who frequently writes on First Amendment and press-freedom topics for a professional audience. But before that, I was for more than fifteen years a working journalist. As a reporter, a feature writer, an opinion columnist, and an editor, I have grappled firsthand with many of the problems addressed by the cases and essays in this book: When should a newspaper publish material it believes to be true but cannot conclusively prove? What parts of a public figure's private life are relevant and suitable for publication, and what should remain private? How far is too far in an opinion writer's game of attack and caricature? When must a promise of confidentiality be honored, even at the cost of legal jeopardy, and when must it be broken, on the grounds that the source to whom it was made has misused the reporter-source relationship to spread false and scurrilous rumors? What should a reporter do when government secrets-such as the identity of an American intelligence agent-fall accidentally into his or her hands?

As a result of this dual consciousness, I have tried to create a volume that will be useful to editors, reporters, and ordinary citizens with an interest in these topics, while still retaining interest for specialists in the field. When in doubt, I thought of myself not as the slow-moving, polysyllabic scholar I have become but as the harried editor I used to be. As a result, I have made a couple of editorial decisions. Most of the cases and excerpts herein have been sharply edited to exclude procedural niceties, the details of lower-court adjudication and summaries of the now-obsolete state of case law at the time they were written. In addition (and this victory of the journalist over the scholar has made both of us positively giddy), there is not a single footnote in this volume. Interrupting the complex exposition of ideas with footnotes has always struck me as an obstacle both to pleasure and to comprehension; in the past century, both legal scholars and jurists have fallen prey far too often to the agreeable temptation to chat on and on in tiny type about ideas that could and should be more succinctly stated in the text itself. Citations to the original sources are included, of course, and readers who want to read more are welcome to turn to them.

In addition, I have included a few essays on the question of free speech generally, for the use of readers not grounded in the broad theory of free speech and of the American First Amendment generally. Freedom of speech and freedom of the press in American constitutional law share an uneasy relationship. Neither judges nor scholars can quite agree whether there is something called "the freedom of the press" that is separate from "the freedom of speech" that every resident of our country, by virtue of the First and Fourteenth Amendments, enjoys. Any American may speak; any American may publish a newspaper. But by publishing a newspaper, does our ordinary American become a favorite child of the First Amendment? And if so, what does that say about democracy, given that owning your own newspaper is at best a dream for all but a tiny segment of the population? "Freedom of the press," wrote the great press critic A. J. Liebling in a 1960 New Yorker essay, "is guaranteed only to those who own one." Are media owners simply members of a favored industry, or do they, by design, serve as surrogates for the public, to whom they owe reciprocal duties of fidelity and truthfulness?

Justice Potter Stewart, in his essay "Or of the Press," suggests that the text provides the answer. "The press" (what we today would call "the media") is, he notes, the only industry singled out by the Constitution for special protection. Stewart's argument is that "the press" as an institution provides a vital checking function on the doings of government and thus enjoys a place in the constitutional structure comparable to that of the actual institutions set up by the Constitution.

This argument boasts a distinguished pedigree. The colonial publicist James Alexander, writing in John-Peter Zenger's New York Weekly Journal, told American colonists that in a limited monarchy, a free press, by applying "the lash of satyr" to the malfeasance of criminal ministers, was not only "consistent with, but a necessary Part of, the Constitution itself." In the crisis of 1798, when the Federalist Party used its dominance of the new government to pass the Sedition Act and jail dissenting editors, James Madison warned that the First Amendment had been meant to entirely disable the federal government from regulating the press and thereby "binding the channel which alone can give efficacy to [the government's] responsibility to its constituents." In 1936, well before anyone could reasonably perceive the Supreme Court as "liberal," the conservative Justice Owen Sutherland analyzed a tax on newspapers as a revival of the eighteenth-century "taxes on knowledge," which were designed "to prevent, or curtail the opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs." Since the Warren Court, justices (increasingly, in recent years, in dissent) often insist that a right asserted by a news outlet-the right to access a criminal trial, for example, or to publish truthful information from government records-is not a privilege sought by self-interested private actors, but a laudable function that the media exercise as constitutional surrogates for the public.

But at the same time, the Court-if not the public-has been reluctant ever to recognize this "structural" role of the press by awarding institutional media any specific prerogative not available to any citizen. Thus, while the federal courts sometimes discuss the possibility of a "reporter's privilege" to withhold the names of confidential sources, it is almost always a case of "jam yesterday and jam tomorrow, but never jam today"-a rhetorical route toward holding that such a mythical privilege, if it applies anywhere, does not apply to the specific case at bar. (Interestingly enough, a majority of states have enacted statutory "shield laws," without notably bad results; Congress, even in the days when the press was popular, has refused to follow suit.) News organizations that seek access to closed governmental areas or proceedings tend to win or lose depending not on how effectively such access will make them surrogates for the public but instead on how historically available the access they seek may have been for the ordinary citizen.

This theoretical difference between the clauses occupies a good deal of space in the third section of the book. The historical sources in the first section, interestingly enough, proceed on the implicit assumption that printing and publishing (at that time the only mass medium available) are fundamentally different from speaking and writing. Printing, to these authors, is, in some ways, a public utility, which later thinkers might have characterized as being "affected with a public interest"; at the same time, it is a private business to be conducted for profit. On the one hand, printers should be free to publish what they sense the market wants; at the same time, they should be careful what they choose, because printed matter is fraught with danger.

These contradictions go back to Milton's Areopagitica, the basic document of press freedom in the Anglo-American tradition. Books are magical, Milton asserts-and dangerous: "as lively, and as vigorously productive, as those fabulous dragon's teeth: and being sown up and down, may chance to spring up armed men. And yet, on the other hand, ... he who destroys a good book, kills reason itself, kills the image of God, as it were, in the eye."

For this reason, he argues, no state censor could possibly have the wisdom to decide which new books should be born and which should be stifled in the womb. That decision must be made after publication, and its safety will be guaranteed by the mystical power of Truth to win over its readers. Milton's hymn to the power of truth has been quoted innumerable times since Areopagitica was written: "For who knows not that Truth is strong, next to the Almighty; she needs no policies, nor stratagems, nor licensings to make her victorious, those are the shifts and the defences that error uses against her power: give her but room, and do not bind her when she sleeps?" Few modern writers who quote these words also note that, for all Milton's faith in Truth, he almost offhandedly concedes that certain errors must be kept out of print: "I mean not tolerated popery, and open superstition, which as it extirpates all religions and civil supremacies, so itself should be extirpate ...; that also which is impious or evil absolutely either against faith or manners no law can possibly permit." The broad freedomMilton foresees in fact extends only to "those neighbouring differences, or rather indifferences, ... whether in some point of doctrine or of discipline, which though they may be many, yet need not interrupt 'the unity of Spirit,' if we could but find among us 'the bond of peace.'"

Similarly, Benjamin Franklin, in his "Apology for the Printers," pleads for a public that will tolerate whatever he chooses to print for his customers, while at the same time insisting that he will set suitable limits over what those customers may print: "I my self have constantly refused to print anything that might countenance Vice, or promote Immorality; tho' by complying in such Cases with the corrupt Taste of theMajority I might have got muchMoney. I have also always refus'd to print such things as might do real Injury to any Person, how much soever I have been solicited, and tempted with Offers of Great Pay. . . . I have hitherto fallen under the Resentment of large Bodies of Men, for refusing absolutely to print any of their Party or Personal Reflections."

(Continues...)

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Edition details

• Publisher: Prometheus
• Publication date: 2008
• Language: English
• ISBN 10: 159102563X
• ISBN 13: 9781591025634
• Binding: Paperback
• Number of pages: 366
• Editor: Epps Garrett, Oppenheimer David B.