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Is the Press Losing the First Amendment?

The press has not, as I said, lost all its battles. The Burger Court unanimously rejected the Nixon administration’s attempt to prevent the publication of the Pentagon Papers, and has just affirmed, in the Richmond Newspapers case, that the press does have some constitutionally protected position under the First Amendment, strong enough so that a trial judge must show some special reason for excluding reporters from a criminal trial. But the press nevertheless believes that it is losing ground overall.

II

Nat Hentoff, in his comprehensive book on the history of the First Amendment,5 describes the rise of the idea of free speech and a free press in America from Peter Zenger on, and notices, in apparent sadness, the symptoms of what he plainly takes to be its present slump. The book is remarkably readable and broad. It has the great merit of showing how the idea of free speech takes on different content as the underlying substantive issues change from educational policy to obscenity to reporting of criminal trials. The tone of the book seems dispassionate. Hentoff argues mostly by quoting others. But there is no doubt where he stands. He is a partisan of free speech, and in this book there are victories and defeats for freedom, heroes and cowards of the press, friends and enemies of liberty.

But there is not much attempt at analysis of the philosophical grounds of free speech or freedom of the press, or much effort to find the limits of the freedoms and powers Hentoff wants to defend. In this respect he is typical of journalists who complain about the fate of the First Amendment in the courts, though he writes better and with more enthusiasm and knowledge than most. The press takes the Amendment as a kind of private charter, and attacks more or less automatically every refusal of the courts to find some further protection in that charter. The newspapers and networks denounced the decisions in the Farber and Herbert cases as fiercely—indeed even more fiercely—than those in the cases of The Progressive and Snepp.

But this strategy of automatic appeal to the First Amendment is, I think, a poor strategy, even if the press is concerned only to expand its legal powers as far as possible. For if the idea becomes popular that the Amendment is an all-purpose shield for journalists, warding off libel suits, depositions, and searches as well as censorship, then it must become a weaker shield, because it will seem obvious that so broad a power in the press must be balanced against other private and social interests in the community. What will then suffer is the historically central function of the First Amendment, which is simply to ensure that those who wish to speak on matters of political and social controversy are free to do so. Perhaps the surprising weakness of the First Amendment in protecting the defendants in The Progressive and Snepp cases, for example, is partly a consequence of the very effectiveness of the press in persuading the courts, in an earlier day, that the power of the First Amendment extends well beyond straight censorship cases.

In order to test this suspicion, we must consider an issue that Hentoff and other friends of the First Amendment neglect. What is the First Amendment for? Whom is it meant to protect? A variety of views is possible. The dominant theory among American constitutional lawyers assumes that the constitutional rights of free speech—including free press which, in the constitutional language, means published speech in general rather than journalists in particular—are directed at protecting the audience. They protect, that is, not the speaker or writer himself but the audience he wishes to address. On this view journalists and other writers are protected from censorship in order that the public at large may have access to the information it needs to vote and conduct its affairs intelligently.

In his famous essay On Liberty, John Stuart Mill offered a similar but more fundamental justification for the right of free speech. He said that if everyone is free to advance any theory of private or public morality, no matter how absurd or unpopular, truth is more likely to emerge from the resulting market-place of ideas, and the community as a whole will be better off than it would be if unpopular ideas were censored. Once again, on this account, particular individuals are allowed to speak in order that the community they address may benefit in the long run.

But other theories of free speech—in the broad sense including free press—hold that the right is directed at the protection of the speaker, that is, that individuals have the right to speak, not in order that others benefit, but because they would themselves suffer some unacceptable injury or insult if censored. Anyone who holds this theory must, of course, show why censorship is a more serious injury than other forms of regulation. He must show why someone who is forbidden to speak his mind on politics suffers harm that is graver than when he is forbidden, for example, to drive at high speeds or trespass on others’ property or combine to restrain trade.

Different theories might be proposed: that censorship is degrading because it suggests that the speaker or writer is not worthy of equal concern as a citizen, or that his ideas are not worthy of equal respect; that censorship is insulting because it denies the speaker an equal voice in politics and therefore denies his standing as a free and equal citizen; or that censorship is grave because it inhibits an individual’s development of his own personality and integrity. Mill makes something like this last claim in On Liberty, in addition to his market-place-of-ideas argument, and so his theory can be said to be concerned to protect the speaker as well as the audience.

Theories concerned to protect the audience generally make what I have called an argument of policy for free speech and a free press.6 They argue, that is, that a reporter must have certain powers, not because he or anyone else is entitled to any special protection, but in order to secure some general benefit to the community as a whole, just as farmers must sometimes have certain subsidies, not for their own sakes, but also to secure some benefit for the community. Theories concerned to protect the speaker, on the other hand, make arguments of principle for free speech. They argue that the speaker’s special position, as someone wanting to express his convictions on matters of political or social importance, entitles him, in fairness, to special consideration, even though the community as a whole may suffer from allowing him to speak. So the contrast is great: in the former case the community’s welfare provides the ground for the protection, but in the latter the community’s welfare is disregarded in order to provide it.

The distinction is relevant to the present discussion in many ways. If free speech is justified on grounds of policy, then it is plausible that journalists should be given special privileges and powers not available to ordinary citizens, because they have a special and indeed indispensable function in providing information to the public at large. But if free speech is justified on principle, then it would be outrageous to suppose that journalists should have special protection not available to others, because that would claim that they are, as individuals, more important or worthier of more concern than others.

Since the powers the press claims, like the power to attend criminal trials, must be special to it, it is natural that the press favors a view of free speech based on the policy argument concerned to protect the audience: that the press is essential to an informed public. But there is a corresponding danger in this account. If free speech is justified as a matter of policy, then whenever a decision is to be made about whether free speech requires some further exception or privilege, competing dimensions of the public’s interest must be balanced against its interest in information.

Suppose the question arises, for example, whether the Freedom of Information Act should be amended so that the Disease Control Center is not required to make its reports available to reporters, or whether the Atomic Energy Commission should be allowed to enjoin a magazine from publishing an article that might make atomic information more readily available to foreign powers. The public’s general interest in being well informed argues against confidentiality and for publication in both cases. But the public also has an interest in infection-free hospitals and in atomic security, and these two kinds of interests must be balanced, as in a cost-benefit analysis, in order to determine where the public’s overall interest lies. Suppose that in the long term (and taking side effects into account) the public would lose more overall if the information in question were published. Then it would be self-contradictory to argue that it must be published in the public’s interest, and the argument for free speech, on grounds of policy, would be defeated.

The problem is quite different, of course, if we take free speech to be a matter of principle instead. For now any conflict between free speech and the public’s welfare is not a pseudo conflict between two aspects of the public’s interest that may be dissolved in some judgment of its overall interest. It is a genuine conflict between the rights of a particular speaker as an individual and the competing interests of the community as a whole. Unless that competing interest is very great—unless publication threatens some emergency or other grave risk—the individual’s right must outweigh the social interest, because that is what it means to suppose that he has this sort of right.

So it is important to decide, when the press claims some special privilege or protection, whether that claim is based on policy or principle. The importance of the distinction is sometimes obscured, however, by a newly fashionable idea, which is that the public has what is called a “right to know” the information that reporters might collect. If that means simply that the public has an interest in knowledge—that the community is better off, all things being equal, if it knows more rather than less about, say, criminal trials or grant applications or atomic secrets—then the phrase is simply another way of stating the familiar argument of policy in favor of a free and powerful press: a better informed public will result in a better society generally. But the suggestion that the public has a right to know suggests something stronger than that, which is that there is an audience-protective argument of principle in favor of any privilege that improves the press’s ability to gather news.

But that stronger suggestion is, in fact, deeply misleading. It is wrong to suppose that individual members of the community have, in any strong sense, a right to learn what reporters might wish to discover. No citizen’s equality or independence or integrity would have been denied had Farber, for example, chosen not to write any of his New York Times stories about Dr. Jascalevich, and no citizen could have sued Farber requiring him to do so, or seeking damages for his failure to write. It may be that the average citizen would have been worse off if the stories had not been written, but that is a matter of the general welfare, not of any individual right.

  1. 5

    Nat Hentoff, The First Freedom: The Tumultuous History of Free Speech in America (Delacorte, 1979).

  2. 6

    See Taking Rights Seriously (Harvard University Press, 1977).

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