The American Press-An Overview
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Although a cherished right of the people, freedom of the press is different from other liberties of the people in that it is both individual and institutional. It applies not just to a single persons right to publish ideas, but also to the right of print and broadcast media to express political views and to cover and publish news. A free press is, therefore, one of the foundations of a democratic society, and as Walter Lippmann, the 20th-century American columnist, wrote, “A free press is not a privilege, but an organic necessity in a great society.” Indeed, as society has grown increasingly complex, people rely more and more on newspapers, radio, and television to keep abreast with world news, opinion, and political ideas. One sign of the importance of a free press is that when antidemocratic forces take over a country, their first act is often to muzzle the press.
Thomas Jefferson, on the necessity of a free press (1787)
The basis of our government being the opinion of the people, the very first object should be to keep that right; and 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.
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The origins of freedom of speech and press are nearly alike, because critical utterances about the government, either written or spoken, were subject to punishment under English law. It did not matter whether what had been printed was true; government saw the very fact of the criticism as an evil, since it cast doubt on the integrity and reliability of public officers. Progress toward a truly free press, that is, one in which people could publish their views without fear of government reprisal, was halting, and in the mid-18th century the great English legal commentator, Sir William Blackstone, declared that although liberty of the press was essential to the nature of a free state, it could and should be bounded.
Sir William Blackstone, Commentaries on the Laws of England (1765)
Where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law�the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.
But what constituted “blasphemous, immoral, treasonable, schismatic, seditious or scandalous libels”? They were, in fact, whatever the government defined them to be, and in essence, any publication even mildly critical of government policy or leaders could lead to a term in prison or worse. In such a subjective judgment, truth mattered not at all.
The American colonists brought English common law across the Atlantic, and colonial officials had as little toleration for the press as did their masters back home. In 1735, the royal governor of New York, William Cosby, charged newspaper publisher John Peter Zenger with seditious libel for criticizing Cosbys removal of a judge who had ruled against the governors interests in an important case. Under traditional principles as enunciated by Blackstone, Zenger had a right to publish his criticism, but now had to face the consequences. However, Zengers attorney, Andrew Hamilton, convinced the jury to acquit Zenger on the grounds that what he had published was true. Although it would be many years before the notion of truth as a complete defense to libel would be accepted in either English or American law, the case did establish an important political precedent. With American juries unwilling to convict a man for publishing the truth, or even an opinion, it became difficult for royal officials to bring seditious libel cases in the colonies. By the time of the Revolution, despite the laws on the books, colonial publishers freely attacked the Crown and the royal governors of the provinces.
Whether the authors of the Press Clause of the First Amendment to the Constitution intended to incorporate the lessons of Zengers case is debatable, since nearly all the new American states adopted English common law, including its rules on the press, when they became independent. When Congress passed a Sedition Act in 1798 during the quasi-war with France, it allowed truth as a defense to libels allegedly made against the president and government of the United States. The law, however, was enforced in a mean and partisan spirit against the Jeffersonian Republicans. Federalist judges in effect ignored the truth-as-defense provision, and applied it as their English counterparts would have done, punishing the very utterance as a libel. As one example, Matthew Lyons, a Vermont newspaper publisher, criticized President John Adams for his “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” For these comments, he received a $1,000 fine and languished in jail for four months until he could raise the funds to pay the fine.
The Sedition Act expired in 1801, and the federal government, with the exception of some restrictions during the Civil War, did nothing to violate the Press Clause for the next century. Libel gradually became more a matter of civil than criminal law, in which prominent individuals took it upon themselves to institute lawsuits to protect their reputations. Congress passed another Sedition Act during World War I, and as noted in the chapter on free speech, cases arising out of that act were treated primarily as speech and gave rise to the clear-and-present-danger test. But in terms of a free press, we do not get any significant developments until the early 1930s, when the doctrine of prior restraint was reinvigorated. In developing a truly free press, newspapers found they had a powerful ally in the Supreme Court, which turned a single phrase, “or of the press,” (contained in the First Amendment to the U.S. Constitution) into a potent shield for press freedom.
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Modern Press Clause jurisprudence begins with the landmark case of Near v. Minnesota in 1931, and while, at first glance, it