Caveat: These words are taken from many different sites on the internet, have been edited, altered and elided freely by me.

The Patrick Henry quote is used here for my purposes. He was actually speaking, on May 29, 1765, about the Stamp Act of 1765.

The implied opinions here are mine. I believe that the information concerning the conduct of government, military groups, businesses, churches and any other institutions that have the power to affect the citizens of the country must be open and available to all. Dissemination of that information should be unhindered by government or its allies, before or after the fact.

1.

Duties of a Citizen

One needs to recall the words of Justice Brandeis about the duties of a citizen, discussed in the chapter on Free Speech, "that public discussion is a political duty; and that this should be a fundamental principle of the American government." Yet in order to enter that discussion, to carry out one's responsibilities as a citizen, one must be informed. Accurate information will not always come directly from the government, but may be offered by an independent source, and the maintenance of freedom and democracy depends upon the total independence and fearlessness of such sources.

Near v. Minnesotain 1931

Modern Press Clause jurisprudence begins with the landmark case of Near v. Minnesotain 1931, and while, at first glance, it would appear to do little more than restate Blackstone's views on prior restraint, in fact it is the first step in building upon that doctrine to create a powerful and independent press.

a. The state of Minnesota had passed a law, similar to laws in other states, that authorized the suppression as a public nuisance of any "malicious, scandalous or defamatory" publications. In this case, however, the law had been passed to shut down a particular newspaper, the Saturday Press, which in addition to carrying racist attacks against blacks and other ethnic groups, had also carried a series of exposes about corrupt practices by local politicians and business leaders. The state court gladly shut down the Saturday Press, which in turned appealed to the Supreme Court. There Chief Justice Charles Evans Hughes applied the reach of the First Amendment Press Clause to the states (it had previously applied only to Congress), and reiterated the idea that no government, except in the case of a wartime emergency, can curtail a newspaper'sconstitutional right to publish. This did not mean that newspapers could not be punished on other grounds, or sued by individuals for defamation. But it laid the groundwork for two significant developments more than three decades later that are the pillars on which a modern free press stands.

b. The first grew out of the civil rights movement in the 1960s. At that time most states had laws that in effect imposed no prior restraints, but did allow civil suits for defamation of character if the information printed was malicious or even just in error. There had been clashes between civil rights advocates and police in Montgomery, Alabama, and a group of rights organizations and individuals took out a full page advertisement in the New York Times entitled "Heed Their Rising Voices," which detailed the difficulties civil rights workers faced and asked for funds to help the cause. Although I.B. Sullivan, the police commissioner of Montgomery, Alabama, was not mentioned by name in the ad, he nonetheless sued the Times on the basis that the ad contained factual errors that defamed his performance of his official duties. A local jury found for Sullivan, and awarded him damages of $500,000 against the Times.

Sullivan had gone against the newspaper not because the errors amounted to very much (one sentence said that Dr. Martin Luther King, Jr., had been jailed seven times, when in fact it had only been four), but because Southerners saw the press as an adversary in the civil rights struggle. Every time protesters were beaten or arrested, the press reported it not only to the rest of the nation but to the world. The Times was not only the foremost newspaper in the country, but also one of the largest and most successful. If it could be punished with a heavy fine (and $500,000 was a great deal of money in 1964), then smaller and less prosperous papers would have to think twice about reporting on the civil rights movement. To allow the judgment to stand, in other words, would have a severe "chilling" effect on the First Amendment right of a free press.

Not only did the high court overturn the judgment, but in doing so it went a great deal further than the simple prior restraint rule that had been inherited from Great Britain; it did away with any punishment for publication when the stories involved public officials and the performance of their duties, except when a paper, knowing something was untrue, nonetheless printed it with the malicious intent of harming the official's reputation. ...the decision addressed a major issue of a free press, namely, its ability to report on government and governmental officials fully and freely. That there might be inadvertent mistakes from time to time would not matter; as the Court explained, mistakes often happen in the "hot pursuit" of news. But the citizenry needed to be informed, and threats of libel against a newspaper for doing its job could not be allowed.

c. Justice William Brennan, Jr., in New York Times v. Sullivan (1964)

We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth – whether administered by judges, juries, or administrative officials – and especially not one that puts the burden of proving truth on the speaker. The constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered. . . . Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. . . . Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

Pentagon Papers

The second modern pillar is the so-called Pentagon Papers case, arising out of publication of documents pilfered from the Defense Department by a civilian employee who opposed American involvement in the Vietnam War. The papers were part of a large-scale review that had been ordered in 1967, and they carried no secret information relating to current military activities in southeast Asia. They did, however, expose the mindset of the policy planners as well as errors in judgment that had led to the growing American commitment during the administration of Lyndon Johnson. Although a new president now sat in the White House, Richard Nixon nonetheless opposed the publication of the papers, on the grounds that it might adversely affect national security interests.

The New York Times began publication of the Pentagon Papers on June 13, 1971, and when the government secured a temporary injunction shortly afterwards, theWashington Post started publication of its copy of the Pentagon Papers. After the government went to court to stop the Post, the Boston Globe picked up the baton. Since the lower courts disagreed on whether such a prior restraint could in fact be imposed, and since the government wanted to resolve the issue quickly, the Supreme Court agreed to take the case on an expedited basis. Although there have sometimes been criticisms of the judiciary for its slowness, the justices moved with astounding speed this time. They agreed to take the case on a Friday, heard oral argument the next day, and handed down their decision the following Tuesday, only 17 days after the Times had begun publication.

The decision provided the clearest statement yet that government had no business trying to censor newspapers or prevent the disclosure of what might prove embarrassing information. Three of the justices believed the government should never have gotten injunctions in the lower courts, and criticized the lower courts for condoning such an effort at prior restraint. While the Court did not say that in no circumstances could prior restraint be imposed (the exception of clearly sensitive information during emergencies such as wartime remained in place), it was clear that the material in the Pentagon Papers did not fall into that category.

Justice William O. Douglas, concurring in New York Times v. United States (1971)

These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. . . . The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. A debate of large proportions goes on in the Nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our national health.

The Fourth Estate

Thomas Carlyle on the press (1841)

Burke said that there were Three Estates in Parliament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or witty saying; it is a literal fact, – very momentous to us in these times.

FOIA (Freedom of Information Act) 1967

The concept of a "right to know" inferred from the First Amendment Speech and Press Clauses is a relatively new one in American political and judicial thought, but once again we can see democracy and its attendant liberties not as a static condition, but one that evolves as society itself changes. The "people's right to know" is intimately involved with press freedom, but it rests upon the broader concerns of democracy. If we take democracy to mean, as Abraham Lincoln put it, a "government of the people, by the people, and for the people," then the government's business is in fact the people's business, and this is where the structural role of a free press and the democratic concerns of the citizenry intersect.

... the fact of the matter is that there are two competing forces at work. On the one hand, government officials at every level, even in a democratic society, would just as soon not share information with the press or the public; on the other, the press, backed by the public, often wants to secure far more information than it legitimately needs. To resolve this tension, the U.S. Congress passed the Freedom of Information Act, commonly called FOIA, in 1967. The law passed at the behest of press and public interest groups who charged that existing federal law designed to make information available to the public was often used to just the opposite effect. As the law has been interpreted, the courts have consistently ruled that the norm is for information to be made public, and that federal agencies must respond promptly and conscientiously to requests by citizens for information. Supplementing the federal law, all states have passed similar Freedom of Information statutes, regarding the workings of state government and its records.

Under the law, both individual citizens and the press may file FOIA requests, but in practice the vast majority are submitted by the press. One individual, even a trained researcher, can track down only a limited number of leads upon which to base an FOIA request, while newspapers and television stations, with large staffs, can put teams to work on a problem; they also have the resources to pay for the copying costs of large numbers of documents. Clearly it is beyond the capacity of the media, print as well as broadcast, to investigate every governmental transaction, cover every trial, report on every legislative hearing, but that very impossibility is what makes a free press essential to democracy. An individual can benefit from the combined coverage that goes out on wire services or is published by the local press, watch hearings or trials on television, and even benefit from the many news and commentary sites on the Internet. Not since humans lived in small villages has it been possible for a single citizen, if he or she desires, to be so well informed about the workings of the government. This knowledge is what enables that person to cast an intelligent ballot, to sign a petition for or against some proposal, write letters to the legislature, and in general fulfill the obligations of a citizen. And it would be impossible without the presence of a free press.

Today's News Sources

At the beginning of the 20th century, new technology has transformed some of the old verities and assumptions about the role of a free press. For many years, for example, radio and television were treated as less protected parts of the press, since it was erroneously believed that there were severe technical restrictions on how many stations could be carried on the airwaves. As a result Congress decided, and the courts agreed, that the airwaves belonged to the public, and that stations would be licensed to broadcast on certain frequencies. In return for these licenses, radio and later television stations had to submit to certain government regulations that often hamstrung them in their ability to either gather news or to air editorial opinion. The development of cable and satellite distribution systems has put an end to the notion of broadcasting as a limited resource, and the broadcast media has begun to take its full place alongside traditional print media.

The arrival of the Internet raises many questions whose answers will not be known for years to come. For the first time in history, a single person, with a minimal investment, can put his or her views out, not only before the local populace, but before the entire world! While one person may not have the news-gathering capacity of a newspaper or television station, in terms of opinion he or she can shout quite loudly to anyone who wants to listen. Moreover, some individuals have formed Internet news services that provide specialized information instantaneously about politics, weather, the stock market, sports, and fashion. In addition to the print and broadcast media, the world now has a third branch of the press, the on-line service.

In terms of the rights of the people, one can argue that there is no such thing as too much news. Across the masthead of many American newspapers are inscribed the words from Scripture, "You shall know the truth and the truth shall make you free." The Founding Fathers believed that a free press was a necessary protection of the individual from the government. Justice Brandeis saw a free press as providing the information that a person needed to fulfill the obligations of citizenship. Probably in no other area is the nature of a right changing as rapidly as it is in the gathering and dissemination of information by the press, but the task remains the same. The First Amendment's Press Clause continues to be a structural bulwark of democracy and of the people.

Fred W. Friendly, Minnesota Rag (New York: Random House, 1981).

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