The Death and Life of American Journalism (2010), by Robert McChesney and John Nichols, is an extraordinary book detailing A) the historical and jurisprudential foundation for freedom of the press (specifically granted in the First Amendment, separate and distinct from free speech), and B) the need to declare journalism as a public good and substantially funding it with taxpayer dollars.
On that second topic of funding, the United States barely funds journalism, and the miniscule amount of tax dollars we spend on journalism is hotly debated and thus politically fragile. Per capita, other developed countries spend 20 to 30 times as much as the United States spends to support high-quality journalism, and the end product in those countries who provide public funding is a much higher quality product than what we have an United States, and that it is much more self-critical press when publicly funded. See the following 2010 presentation by Robert McChesney, which I recorded at a Free Press National Conference.
Given the current NSA controversy regarding Edward Snowden, I wanted to take this opportunity to review some of the historical and jurisprudential foundational information offered by McChesney and Nichols justifying the need for a vigorous free press. In fact, the authors make the argument (consistent with conclusions of the Founding Fathers) that without a wide-open free press absolutely unrestrained by government, democracy would be a farce. The numerical references are page numbers to the above book by McChesney and Nichols.
In “An Apology for Printers,” Benjamin Franklin wrote “Both sides ought equally to have the advantage of being heard by the Publick.” He rejected the idea that printers should publish only what they personally agreed with. He indicated that the job of the press was to stimulate debate, stir the masses to action, and lighten and offend. “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.” 116
McChesney and Nichols write: “The press was understood as a political and in many practical senses public institution, necessary to self-government, and with obligations to serve the citizenry. In colonial times, there was a “striking degree of support… around the importance of dissent.” 116. At a baseline level, contemporary observers recognize that both Madison and Jefferson aggressively advanced the notion that a free press was necessary to create the informed citizenry that made popular sovereignty and democracy possible. No journalism means no democracy, and no constitutional form of government based upon popular sovereignty.” 119
James Madison: “Checkered as [the press] is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”
Thomas Jefferson’s letter to Edward Carrington on January 16, 1787: “Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.” 119
“For Jefferson, just having the right to speak without government censorship is a necessary but insufficient condition for a free press, and therefore democracy. It also demands that there be a literate public, a viable press system, and that people have easy access to this press.” 119
Scholar Robert W. T. Martin explained that the authors of the Constitution sought a “free and open press.”
“Free press doctrine lionized the press as a prime defender of public liberty in its role as a bulwark against governmental tyranny. Open press doctrine, on the other hand, stressed the individual right of every man to air his sentiments for all to consider, regardless of his political perspective or the consequences for the people’s liberty.” 115.
Jefferson: “To preserve the freedom of the human mind then & freedom of the press, every spirit should be ready to devote itself to martyrdom.” 119 (emphasis added).
McChesney and Nichols: “To the press comes the obligation to undermine the natural tendency of the property classes to dominate politics, reduce the masses to effective powerlessness and eventually terminate self-government.” 120. Madison and Jefferson were concerned about the corrosive effects of warfare and the related effect of war on economic inequality:
Of all the enemies of true liberty, war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the executive is extended; its influence in dealing out offices, honors and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in Republicanism may be traced to the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manner and of morals, engendered in both. No nation can preserve its freedom in the myths of continual warfare.
120-121
McChesney and Nichols offer this powerful hypothetical:
Imagine, for one moment, what would happen if the federal government issued an edict demanding that there be a sharp reduction in international journalism, that leading newspapers be shuttered, the statehouse bureaus be closed and that local newsrooms have their staffs and budgets slashed. Imagine, too, that the president issued an order that Washington bureaus be closed, and that news media concentrate upon celebrities and trivia, rather than investigate the economic crisis or vigorously pursue corruption in federal agencies. Had all that occurred, these official actions would have sparked an outcry that made Watergate look like a day at the beach. Yet, when quasi–monopolistic commercial interests effectively do pretty much the same thing, and leave our society as impoverished culturally as if it had been the result of a government fiat, it is met mostly with resignation, is something as unavoidable as the Rocky Mountain range when one drives from Chicago to California.
147
Many people claim that the Supreme Court has insisted on a laissez-faire interpretation of the free press clause of the First Amendment. People making this argument insist that freedom of the press means that media firms should be allowed to maximize their profits without any interference from government. C. Edwin Baker has been one of the greatest authorities on the Free Press cause, and he provided many reasons to dispute this laissez-faire interpretation that the government has no role to play except to let the market do its thing to the glee of corporations and advertisers. 148-149
It turns out that there have not been many Free Press cases, and there are none prior to the 1920s. The courts have given far more attention to free speech cases. 149. McChesney and Nichols write: “But when the court has touched on these issues, it has at all times understood the press in a manner consistent with Jefferson and Madison, rather than Wall Street and Madison Avenue.” 149
“The Madisonian notion of the central and indispensable importance of informed citizenry, and a press system to assure the nurturing of such a constituency, has been articulated many times. (No justices ever suggested the contrary). In the Supreme Court’s 1927 Whitney versus California case, Judge Louis Brandeis concluded: “Those who won our independence believed that the final end of the state was to make men free to develop their faculties… That the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government.” 149
In 1822, James Madison observed as follows: “A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both. Knowledge will forever govern ignorance, and the people who mean to be their own governors must arm themselves with the power knowledge gives.” 155
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C. Edwin Baker has argued that the press is a unique institution distinct from those who exercise free speech rights, and also distinct from commercial enterprises.
In 1945, the United States Supreme Court decided the antitrust case of Associated Press versus United States. The opinion was written by Justice Hugo Black:
It would be strange indeed however if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, the freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.
150
Justice Felix frankfurter wrote the following in his concurring statement: “Truth and understanding are not wares like peanuts or potatoes. And so, the incidence of restraints upon the promotion of truth… Calls into play considerations very different from comparable restraints in a cooperative enterprise having merely a commercial aspect.”
McChesney and Nichols write: “In short, the court has ruled that the state has a compelling interest to see that a viable press system exists, and there is no presumption that profit-seeking firms will necessarily deliver the goods.” 150-151.
In the 1994 case of Turner Broadcasting System versus FCC Justice Anthony Kennedy wrote: “Assuring the public has access to a multiplicity of information sources is a governmental purpose of the highest order.”
Justice Black wrote one of the many opinions in the Pentagon Papers case (New York Times versus United States):
In the First Amendment, the founding fathers gave the Free Press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The government’s power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
151
Justice Potter Stewart wrote a concurring opinion in that same case:
In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry–in an informed and critical public opinion which alone can hear protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For, without an informed and Free Press, there cannot be an enlightened people.
151-152.
In the case of Red Lion broadcasting Incorporated versus FCC, justice Byron White, a conservative member of the court, wrote the majority opinion, including the following:
But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount… It is the purpose of the First Amendment to preserve and uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or a private licensee… It is the right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC.
152
Writer Jerome Barron argued: “freedom of expression is meaningless if all the important means of communication-press, television, and radio-are closed.”
In 1974, Justice Potter Stewart gave a speech in which he stated as follows “The free press guarantee is, in effect, a structural part of the Constitution… The primary purpose of the constitutional guarantee of a Free Press was… To create a fourth institution outside the government as an additional check on the three official branches.… Perhaps our liberties might survive without an independent established press. The Founders doubted it, and… I think we can all be thankful for their doubts.” 153
Thus, there is a strong historical and jurisprudential basis for characterizing a free press as essential for a meaningful democracy. To the extent that the government attempts to restrict the press from freely publishing any information, we no longer have a democracy. It would be like making an automobile that included a steering wheel that spun around but did not move the wheels. Even though it had other major parts (engine, breaks and seats), it would be a farce as a car—totally worthless. Same thing for a supposed democracy. Even with three branches of government it couldn’t function at all without a free press. Without a completely free press, there is no mechanism for rooting out government corruption, which often leads to squandering the treasury on wars, leading to inequity and despair.
It is on the basis of these writers and these cases that Glenn Greenwald boldly (and correctly) asserts that he has the absolute right to publish information, even classified information, given to him by whistle-blowers such as Bradley Manning and Edward Snowden. Greenwald has needed to make this reminder of the bedrock foundation of the United States in reaction to accusations by politicians that he should be criminally indicted for doing his job as a journalist. In this article, John Nichols reminds us that this is not the first time that the U.S. government has attempted to ignore the plain language of the First Amendment.
It’s amazing to see how well and how carefully the Founders of the United States anticipated the importance of a free press, and the fact that an unfree press would lead to corruption, endless war and societal inequality.
