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The Responsibilities of a Free PressAuthor(s): Geoffrey R. StoneSource: Bulletin of the American Academy of Arts and Sciences, Vol. 40, No. 5, (Feb., 1987),pp. 6-22Published by: American Academy of Arts & SciencesStable URL: http://www.jstor.org/stable/3823610Accessed: 07/07/2008 13:36

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Midwest Center Symposium

On November 1, 1986, the Midwest Center sponsored two events at the University of Chicago devoted to the rights, duties and obligations of a free press. During the afternoon, Geoffrey R. Stone, Harry Kalven, Jr., Professor of Law at the University of Chicago, was the principal speaker at a symposium on this subject. Other panelists included Elmer Johnson, Vice President, Public Affairs and General Counsel of General Motors Corporation, Jack Fuller, Editorial Page Editor, Chicago Tribune, and Burton Benjamin, Senior Fellow, Gannett Center for Media Studies, Columbia University. An audience comprised of Academy Fellows and members of the Chicago business, political, and journalism communities participated in the discussion. The symposium was funded by a grantfrom theJohn D. and Catherine T. MacArthur Foundation.

That evening, at the 1672nd Stated Meeting of the Academy, Sir Zelman Cowen, Provost of Oriel College, Oxford University, and Chairman of the United Kingdom Press Council, presented a communication on approaches to ensuring a responsible press in a democratic society. Fol- lowing are the texts of both Mr. Stone's and Sir Zelman's presentations.

The Responsibilities of a Free Press

Geoffrey R. Stone

A genuine freedom of the press is rare and it is precious. Even a cursory glance at the other nations of the world establishes its uniqueness, and our own history demon- strates its fragility. Although we tend to assume in the United States a deep and long- standing commitment to freedom of the press, our traditions belie the assumption.

In 1663, William Twyn printed a book endorsing the right of revolution. As a con- sequence, he was sentenced to be hanged, cut down while still alive, and then emascu- lated, disemboweled, quartered, and

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beheaded. When it came to such matters, the English were no slouches.

In 1722, James Franklin, the older brother of Ben, ran a somewhat sarcastic notice in his New England Courant advising his readers that the government was preparing a ship to pursue coastal pirates "sometime this month, wind and weather permitting." The insin- uation of incompetence enraged Massachu- setts' popularly-elected assembly. Franklin was arrested. After a pro forma hearing, the assembly resolved that Franklin had com- mitted a "High affront to this Government" and had him imprisoned for the remainder of the legislative session.

In 1799, less than a decade after the adop- tion of the First Amendment, Thomas Cooper, the editor of a leading Republican paper in Pennsylvania, was prosecuted under the Sedition Act of 1798, which prohibited any "false, scandalous, and malicious writing against the government of the United States" with the intent to bring the government "into disrepute." Cooper's offense was found in his statement that, early in his term, Presi- dent Adams "was hardly in the infancy of political mistake," for at that time "we were not yet saddled with the expense of a per- manent navy, or threatened, under his aus- pices, with the existence of a standing army." Cooper was convicted on the theory that such expression "leads to discontent, discon- tent to a fancied idea of oppression, and that to insurrection." He was sentenced to six months in prison.

During the abolition controversy, the Southern states enacted a broad range of laws designed to prohibit abolitionist litera- ture. Virginia, for example, made it unlawful for any person to distribute or receive any publication that denied the right to own slaves. A first offense was punishable by thirty-nine lashes; a second by death.

During World War I, Congress enacted the Espionage Act of 1917 and the Sedition Act of 1918, which made it a crime for any person to publish any disloyal or scurrilous

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language about the United States, the Con- stitution, or the flag. In 1919, Frank Shaffer was indicted under the Espionage Act for mailing a publication that declared: "The war is wrong. Its prosecution will be a crime. There is not a question raised, an issue involved, a cause at stake, which is worth the life of one blue-jacket on the sea or one khaki-coat in the trenches." Describing this passage as "treasonable, disloyal, and sedi- tious," a federal court convicted Shaffer and sentenced him to several years in prison. In a similar case in 1920, the Supreme Court of the United States rejected the claim that such legislation violated the First Amend- ment. The Court explained that it "would be a travesty on the constitutional privilege" to assign defendants like Shaffer "its protection."

We have, of course, come a long way since 1920. Indeed, by the early 1970s, Harry Kalven could, in his own special way, joy- ously celebrate with his students, of whom I was one, the deep and abiding consensus that had emerged in the United States over the value of free expression. The consensus that Kalven celebrated is today a central component of our national identity. But it is essential that any discussion of freedom of the press begin with an awareness that that consensus is more short-lived and per- haps more tenuous than we might like to believe. As Leonard Levy has observed, our legacy is not one of freedom, but of suppres- sion.

What, then, is the "freedom of the press" in the United States as we move towards the Bicentennial of our Constitution? The freedom of the press as we now understand it can be captured in three general propo- sitions. The government may not license the press. The government may not differen- tially tax the press. And the government may not restrict what the press may say.

Each of these propositions is subject to qualification. The government does license the broadcast media. The government may

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differentially tax the press if the differential is unquestionably beneficial to the press. And the government may restrict certain narrowly defined categories of expression, such as obscenity, commercial advertising, and, in some circumstances, libel. For the most part, however, these three general propositions capture the essence and spirit of freedom of the press.

What makes these propositions important is that they do not apply to other institu- tions. For example, the government rou- tinely licenses doctors, lawyers, drug manufacturers, restaurants, and the like. Indeed, so long as it does not act irrationally, the government is constitutionally free to license just about any business, occupation, or activity-except the press.

Similarly, the government routinely imposes differential taxes on hotels, bars, gasoline, cigarettes, and the like. So long as it does not act irrationally, the government is constitutionally free to impose differential taxes on just about any activity or enter- prise-except the press.

And the government routinely regulates and restricts the quality of such goods and services as food products, drugs, automo- biles, air transport, and education. So long as it does not act irrationally, the govern- ment is constitutionally free to regulate or restrict just about any good or service- except the press.

Perhaps the best illustration of the extent to which the press is free of government regulation is the Pentagon Papers decision, in which the Supreme Court held that the Washington Post and the New York Times could not even be delayed from publishing excerpts from a top secret Defense Department study that had been pilfered from the government without a showing that publication would "surely result in direct, immediate, and irre- parable damage to our Nation." We have, indeed, come a long way since the days of John Twyn, Thomas Cooper, and Frank Shaffer. As Justice Potter Stewart observed,

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the press "is the only organized private busi- ness that is given explicit ... protection" in the Constitution of the United States.

Why? Why does our Constitution grant such extraordinary protection to freedom of the press and, more generally, to the freedom of speech? It is only by answering that question that we can meaningfully dis- cuss the responsibilities of a free press. Although lawyers,judges, philosophers, and political scientists have offered several rationales for the protection of free expres- sion, the most powerful rationale, and the one most directly linked to the freedom of the press in particular, was perhaps best articulated by Alexander Meiklejohn.

Meikeljohn explained that the reason for our extraordinary protection of the freedom of expression "lies deep within the very foundations of the self-governing process." When individuals govern themselves, they must pass judgment upon the wisdom, the fairness, and the danger of competing posi- tions of public policy. If they are denied acquaintance with relevant information or opinion or doubt or disbelief or criticism, their judgments will of necessity be ill-con- sidered. If the citizens of a self-governing society are deprived for any reason of an accurate and comprehensive presentation of all relevant ideas and information, there will be a "mutilation of the thinking process of the community" that will subvert self-gov- ernance itself. Thus, as Meiklejohn observed, the principle of freedom of expression "springs from the necessities of the program of self-government." It is "a deduction from the basic American agreement that public issues shall be decided" by the citizens them- selves.

An essential corollary of the self-gover- nance rationale is the value that a free press can serve in checking the abuse of power by public officials. The abuse of delegated power by elected officials is perhaps the most serious threat to self-governance. The check on such abuse must come from the

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power of public opinion. As James Madison maintained in his attack on the Sedition Act of 1798, whether the public trust has been breached "can only be determined by a free examination thereof, and a free communi- cation among the people thereon." The freedom of the press plays a critical role in this process. Indeed, in setting up the three branches of the federal government, the Founders deliberately created an internally competitive system. A 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. As Justice Stewart reminded us, the "relevant metaphor is that of the Fourth Estate."

The press generally recognizes today that with special rights come special responsibil- ities. We have not made the press "the only organized private business that is given explicit constitutional protection" for the personal amusement of reporters, editors, and publishers. To the contrary, we have granted the press extraordinary protection for extraordinary reasons-reasons that go to the very core of our self-governing society. Freedom of the press is a means to an end. It is not a law of nature. A press that fails to serve the ends for which it is free will lose its freedom. This is the quid pro quo. Hap- pily, as I have indicated, the press today gen- erally recognizes that with its rights come responsibilities.

It has not always been so. The conception of the press at the founding of the Consti- tution included no notion of responsibility to the public. As one early publisher remarked: "A newspaper is a private enter- prise owing nothing whatever to the public. It is affected with no public interest."

Indeed, the quality of the press in the late eighteenth century clearly reflected this creed. As the historian Charles Beard observed, "in its origin the freedom of the press had little or nothing to do with truth- telling." To the contrary, most early American

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newspapers "were partisan sheets devoted to savage attacks on party opponents." In 1802, Thomas Jefferson lamented the press' "abandoned prostitution to falsehood." Jef- ferson added that "Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle." And John Ward Fenno, a leading journalist of the time, complained in 1799 that "the American newspapers are the most base, false, servile and venal pub- lications that ever polluted the fountains of society" and that their editors are "the most ignorant, mercenary, and vulgar automa- tions that ever were moved by ... sordid mercantile avarice."

Highly polemical newspapers with nar- rowly partisan support had their heyday through the first third of the nineteenth century. In the 1830s, however, with the rise of technology and urbanization, the mass newspaper came into existence. The press in this era switched emphasis from politics to crime, sex, trivia, and human interest. By aiming for the mass audience, newspapers became "democratized." They also became big business. The competitive quest for bigger audiences and even bigger profits reached its zenith in the late years of the nineteenth century when William Randolph Hearst came out of the West to challenge Joseph Pulitzer's hold on New York. Their battle for circulation brought about the era of yellow journalism, a journalism of screaming headlines, faked news, pilfered pictures, and unrestrained jingoism.

This battle also brought about a new self- awarencess of the press. Journalists such as Horace Greeley and Henry Raymond preached that newspapers should ignore the trivialities of the penny press and furnish political leadership by setting the public good above sensationalism and partisan pol- itics. And Joseph Pulitzer warned that "com- mercialism ... becomes a degradation and a danger when it invades the editorial rooms." It was such journalists as Greeley,

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Raymond, and Pulitzer who, in the late nine- teenth and early twentieth centuries, planted the seeds of the idea of a public responsi- bility of the press.

Changes in the nature and structure of the press have made "public responsibility" not only a good idea, but a constitutional imperative. The Founders of our Constitu- tion were justified in believing that if only they could prevent the government from interfering with the freedom of the press, the essential prerequisites for self-gover- nance might be achieved. The press of their day consisted of hand-printed sheets issuing from small print shops. Presses were cheap. Anyone with anything to say could reach the relevant audience with comparatively little difficulty. Citizens whose views were not rep- resented by others could join together to start a publication of their own.

Those circumstances have changed radi- cally. Literacy, the electorate, and the pop- ulation have increased to the point where the political community to be served by the press today includes almost 250 million people. Advances in technology have made communication more effective and more expensive. The press has been transformed. It is vast, complex, and enormously pow- erful. It is highly concentrated. Most of the news, information, and opinion received by the American people is produced today by only a small handful of media conglomer- ates which sit astride the channels of com- munication.

As a result of these changes, the right of effective public expression has for most per- sons lost its reality. Protection against gov- ernment is no longer enough to guarantee that a citizen with something to say will have a meaningful chance to say it. Now, the owners and managers of the press effec- tively determine which persons, which facts, and which ideas will reach the public. Self- governance itself is thus now dependent upon the decisions of whose who own and manage the press. Modern society requires

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the great agencies of the press. But the cre- ation of such agencies establishes power cen- ters that may themselves endanger self- governance. Thus, whatever may have been the case in 1790, the press today is unques- tionably "a business affected with a public interest."

What, then, are the responsibilities of a free press in the closing years of the twen- tieth century? They are, first, to maintain an independence from government and to cast an ever-critical eye on government at all levels to expose whenever possible corrup- tion, deceit, failure, and official abuse; second, to provide a forum for the exchange of crit- icism and comment and to provide access to a wide range of diverse ideas and opinions spanning the entire spectrum of political thought; and third, to report in an accurate, timely, and comprehensive manner infor- mation about international, national, regional, and local events, and to interpret these events and help place them in their political, historical, economic, and social perspectives.

In short, it is the responsibility of the press to inform the public so it can bring its influ- ence to bear in an informed and intelligent manner. The press is thus an essential cog in the machinery of self-governance. To whatever extent the press fails to meet these responsibilities, democracy suffers.

Viewed from a historical perspective, the press today may be said to meet these responsibilities relatively well. If we look back to 1800 or 1900, for example, it seems clear that the overall quality of the press has improved over time. The press today is not as abusively partisan as it was in 1800, nor is it as grotesquely sensationalistic as it was in 1900. Over time, the press has raised its levels of professionalism and reliability. Moreover, due to increased literacy and advanced technology, the press today reaches a higher percentage of the population than at any time in the past.

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This is not to say, however, that all is well. To the contrary, a historical perspective may well be misleading. As I have suggested, changes in society in general, and in the nature of the communications, industry in particular, have drastically altered the role of the institutional press in our democratic system. If self-governance is to succeed, the press must now meet responsibilities that it did not have in earlier eras. The partisan- ship of 1800 and the sensationalism of 1900 may not have threatened self-governance in the context of their times. Such zealous par- tisanship and rampant sensationalism in 1986, however, in a press that is largely con- trolled by only a small number of highly concentrated organizations, could rapidly subvert the very structure of self-gover- nance. Thus, although progress is good, it does not establish that the press meets its fundamental responsibilities in the changed circumstances of today's world.

Has the press met its responsibilities? The press' first responsibility is to maintain its independence from government and to keep an ever-watchful eye on government action. The need for the press to meet this respon- sibility is greater now than ever. With the expansion in the size, complexity, and power of modern government, society needs well- organized, well-financed, professional critics to serve as a counterforce to government- critics who are capable of acquiring essential information about the actions of govern- ment and disseminating that information to the public at large.

In the post-Watergate era, investigative journalism has flourished. Spurred on by the example of Woodward and Bernstein, newspapers, magazines, and television sta- tions have unleashed special investigative teams charged with the task of uncovering waste, scandal, and deceit in government. Although there have been excesses, including occasional instances of fraud and unwar- ranted invasions of privacy, such investiga- tions have generally had a salutary effect.

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They have brought to light serious problems that would not otherwise have come to public attention. They have, at their best, produced important governmental reform, the resignation of unscrupulous officials, and governmental investigation of previ- ously undisclosed abuses. This is perhaps the best example of a journalistic practice produced by competitive pressures that enhanced rather then degraded the stan- dards of journalism.

At the same time, it is important to note that there are powerful forces at work that tend to undermine the independence of the press. The commercial incentive, for example, which spurs on investigative reporting, tends also to dampen the press' vigor when it comes to scrutinizing popular public officials. There is a concern that if the press challenges such officials it may alienate readers or viewers. This may in turn generate a timidity that prevents the press from meeting its responsibility to the public. This phenomenon is illustrated by the press' treatment of President Reagan, who for the better part of his presidency has escaped genuinely critical scrutiny by the press. The "teflon president" is no joke. It is a serious failure of the press to meet its paramount responsibility vigorously to challenge the conduct and judgment of the most powerful public official in the land.

Another force that may undermine the independence of the press is the risk of manipulation by government. News today too often consists of the staged photo oppor- tunity, the exclusive interview, and the inten- tional leak. The press in this environment is a supplicant. It gets the story only if it coop- erates. The press must resist such manipu- lation. It must not permit its competitive incentives to make it an unwitting partner to partisanship and distortion. It must fight such manipulation with the most powerful tool at its disposal-disclosure.

The press' second responsibility is to pro- vide a forum for the exchange of criticism

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and comment and to provide access to a wide range of diverse ideas and opinions span- ning the entire spectrum of political thought. A self-governing society lives by its ideas. New ideas, controversial ideas, offensive ideas-all must be available for public debate and discussion. To be effective self-gover- nors, citizens must confront ideas that ques- tion their basic assumptions and stimulate debate, argument, and insight on public questions.

At the time the Constitution was adopted, individuals had relatively easy access to the marketplace of ideas. Any citizen with an opinion-no matter how provocative-had a reasonable opportunity to participate in public debate. With the development of the mass media, however, and the concentration of ownership in a relatively few hands, this is no longer true. Although an individual with a new or controversial idea may still distribute leaflets or speak in a public park, this is no substitute for even fleeting access to the mass media, which can reach thou- sands and even millions of citizens at a time. The greatest danger to free expression today is not that ideas will be suppressed by the government, but that they will be stifled because they are not approved by the man- agers of the press.

The press today is big business. Not sur- prisingly, its own views reflect moderation. There is disagreement, but it is muffled. It is the disagreement of moderate Democrats and moderate Republicans. Although those citizens who are determined to confront a wide range of more controversial views can do so by reading books and magazines that present extreme and divergent perspectives, most citizens have neither the time nor the inclination to pursue diversity in so aggres- sive a manner. They rely on the 6:00 news and their local paper for all or virtually all of their news and information. To prevent the vast majority of our citizens from being effectively denied exposure to new and con- troversial ideas, the mainstream press must

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come to regard itself as a common carrier of ideas. It must open itself to the expression of a wide range of views, whether it agrees with them or not.

In recent years, there has been consider- able movement in this direction, especially in the print media. Many newspapers now feature op-ed pages that present columns by authors whose opinions do not coincide with those of the paper, and almost all news- papers now use the "letters to the editor" format, which often provides an even more open forum. These are important develop- ments that should be encouraged and expanded.

Television, on the other hand, has gen- erally failed in this regard. Television's gen- eral policy of permitting "responsible individuals" to respond at 2:00 in the morning to the station's own editorials on such "con- troversial" topics as why we need more trees or why we should increase the penalty for jaywalking hardly meets television's respon- sibility to the public. Television should sell airtime for public issues as well as commer- cial messages, and, following the lead of the print media, it should set aside a significant time slot in prime time for the equivalent of letters to the editor. In light of the realities of the marketplace of ideas in the late twen- tieth century, such reforms are essential if we are to remain true to what Justice Wil- liam Brennan has described as our "pro- found national commitment to the principle that debate on public issues should be unin- hibited, robust, and wide-open."

The press' third responsibility is to report in an accurate, timely, and comprehensive manner information about international, national, regional, and local events, and to interpret these events and help place them in their political, historical, economic, and social perspectives. Complaints about press inaccuracy are commonplace. Much of the problem is due to the inherent conflict between accuracy and timeliness. The rush to present "hot" news-to be the first to

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"break" the story-generates carelessness. The press must learn to police itself better. There are too few internal checks and too few consequences for inaccuracy and incom- pleteness. As Peter Braestrup has observed, "Some editors fear that they will inhibit the reporter's ... eagerness to grab a good story if they insist on too much second thinking, too much reflection. A person can bat .500 in the newspaper business, and if he hits a couple over the wall all is forgiven."

The consequences of inaccuracy are severe, not only for the individuals directly involved, but for self-governance itself. Public confi- dence in the press has declined steadily over the last two decades. The percentage of people expressing confidence in the press is now only 19 percent, down 10 percent since 1966. More than 60 percent "believe only some" or "very little" of what they read in newspapers or hear on television. If the press is to perform its core functions in a self-governing society, it must have credi- bility with the people. Citizens who do not trust the accuracy of their primary source of information cannot confidently govern themselves. Nor can they govern themselves well. The press must place greater value on accuracy and it must open itself to more rig- orous self-criticism. The freedom of the press may effectively eliminate legal liability for inaccuracy, but it does not justify inac- curacy.

A second form of inaccuracy also merits attention. I refer here not to factual inac- curacy, but to shallowness of understanding. Sound reporting of such complex issues as the deficit, AIDS, the Supreme Court, and the latest SALT treaty requires at least some knowledge of economics, science, law, and international affairs. This places extraordi- nary demands on the press. The press does not always meet these demands.

Many of us have no doubt had the expe- rience of knowing the "real" story behind some newsworthy event involving our own special field of expertise, only to see the

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story as it appears in the press oversimplify, misunderstand, and distort the truth. The problem is not one of bias, but of lack of understanding and limited resources.

There are at least two ways in which the press can combat this problem. First, it can consult experts in the field who can guide the journalist's understanding. This is done, but not often enough and not thoughtfully enough. Second, journalists can deepen their own understanding of these issues, either through programs of continuing education or through programs like Harvard's Nieman Program and the Univer- sity of Chicago's Benton Program, which provide journalists with an opportunity to develop some expertise and to reflect in an academic environment on some of the issues they will have to cover in the years to come. The press must actively support such pro- grams and it must actively encourage jour- nalists to participate in them.

An even more serious problem derives from the profit motive, which drives the press relentlessly to seek larger and larger audiences. The press is in business. Pub- lishers and broadcasters design their news- papers and programming to sell. They are generally going to sell what the public wants to buy. And the public does not want theo- retical analyses of supply-side economics or legal critiques of the latest decision of the United States Supreme Court. In the world of private enterprise, gangland murders, fires, and quarrels among public officials crowd out more serious and in depth cov- erage of the world's events. In the world of private enterprise, political campaigns become sporting events in which the candi- dates, the electorate, and the democratic process are demeaned.

Although there are exceptions, such as CBS' "Face the Nation," NBC's "Meet the Press," and ABC's "Nightline," television news is for the most part merely a branch of show business. Its values are those of melo- drama, pathos, and titillation. Its reporters

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and anchors are too often hired for their appearance rather than their depth of understanding. What is "news" for television depends on what can or cannot be put on camera. When South Africa banned televi- sion cameras, television's coverage of South Africa disappeared.

Television has extraordinary potential. There are riveting scenes that only television can convey. Consider poverty in the United States. The Chicago Tribune last year ran an extraordinary series on the urban under- class, entitled "The American Millstone." It represented print journalism at its best. But the reality and horror of abject poverty in a nation as prosperous as this can be conveyed even more powerfully over the medium of television. Such a documentary, however, would not sell as well as "Dallas" or "Miami Vice," so it is not produced. Over a quarter of a century ago, Edward R. Murrow's extraordinary documentary "Harvest of Shame" brought the plight of migrant workers to the attention of the American public and led to important legal reforms. Today, instead of a "Harvest of Shame" focusing on the poor and the homeless, we are fed "magazine" format shows which, in five minutes or less, sum up a subject of great controversy and deliver a "definitive" decision. This is not the sort of systematic informing of public opinion that we need to face the challenges of the world today.

There is a counter-argument. It has been said that if the press is to exist as a private business, it can succeed only as other retailers succeed-by giving consumers what they want. On this view, the test of public service is financial success.

There is some merit to this argument. It would not serve the ends of the first amend- ment to bankrupt the press. But this argu- ment proves too much. Other professions, such as law and medicine, accept responsi- bility for the service they render to the public and establish ethical standards that

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do not cater solely to the financial incentive. The press can do the same.

Moreover, the analogy to other retailers is false. Other retailers do not enjoy the extraordinary protections of the first amendment. These protections effectively subsidize the press. If the press insists on the right to act like other retailers, it forfeits its right to those protections. With rights come responsibilities. The press cannot have it both ways.

Finally, and perhaps most important, the press does not service static wants. Rather, the press over time transforms the wants of the public. The very way in which it presents news shapes our tastes and expectations. The press can cater to the best or to the worst in our people. It has a responsibility to elevate rather than to degrade them. It has a responsibility to encourage citizens to be informed.

There is, however, a limit. The press cannot on its own preserve self-governance. Citizens have as much of a responsibility to be informed as the press has to inform them. If citizens are too lazy, too compla- cent, or too indifferent to inform them- selves, the press cannot do it for them.

In a radio address to the United States in 1931, George Bernard Shaw startled his audience with the following proposition: "Every person who owes his life to civilized society and who has enjoyed ... its very costly pro- tections and advantages should appear at rea- sonable intervals before a properly qualified jury to justify his existence, which should be summarily and painlessly terminated if he fails to justify it." I do not advocate such a program. But I do suggest that all of us who enjoy the protections and advantages of self- governance have a responsibility to justify our existence under it.

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