A Free Press Can Take the Heat

In the middle of a congress reconsidering the First Amendment an angry woman took the floor microphone to complain that “the media uses its power to walk all over people, and something has to be done to stop it.”

Her view of “the media” as reckless monolith did not have enough support to carry resolutions that would have suggested official control of the press. But there was plenty of indignation about the methods of journalists and about what and how they report. Every reporter and editor present felt its heat and must have pondered once again the fragility of the right to freely do his or her job. They also must have reflected--one hopes--on how their decisions and methods affect others.

The First Amendment Congress was founded by journalists concerned about the public’s mistrust of and anger toward the press. Their assumption, or hope, was that if the populace understood the importance of the free-press provision of the amendment, it would understand why journalists report the disagreeable things they do and why they are sometimes disagreeable in the process of finding out those things. As important, the journalists felt that vigorous discussion of First Amendment rights would encourage their colleagues to examine their attitudes, excesses and accountability.

At last week’s First Amendment Congress in Denver, 250 Americans (only about one-quarter of them in journalism) wrestled with modern applications of the rights bestowed on us 200 years ago when the Founders approved 45 miraculous words: “Congress shall make no law”--one speaker in Denver suggested that the First Amendment should have stopped there--”respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the last decade, Americans’ dissatisfaction with newspeople seems to have grown, even as journalism has paid increasing attention to its behavior and ethical standards. At the professional seminars, workshops and conferences on journalism ethics that I have participated in, the dedication to fairness and responsible behavior is obvious. So is a tenacious commitment to the function of the press as a watchdog over government. There is also in these intramural news business discussions a nearly universal insistence among journalists that no one within or outside the profession be allowed to impose on the press standards of responsibility.

This position sounds to many like arrogance. But to journalists it is at the core of preserving a free press. Most thoughtful defenders of the First Amendment, including those who criticize the intrusive behavior of some journalists, argue forcefully against any modification of the free-press provision. Harvard law professor Arthur Miller told the Denver meeting that he deplored the myths that journalists have created about privileges supposedly conferred on them by the First Amendment. He was particularly incensed about the use of “the public’s right to know”--which, he pointed out, does not exist in the Constitution--as a shield for invasion of privacy by journalists. Nonetheless, after excoriating journalists for their transgressions and hubris, Miller concluded, as did James Madison and company in 1791, that without a free press we cannot have a free society.

Arguing against a resolution recommending that press responsibility be mandated, one journalist said, “The Constitution allows us to be irresponsible. I wouldn’t have it any other way.” It was a responsible thing to say. The amendment was voted down.

That the press is not held accountable is an extremely disagreeable pill for many Americans to swallow. But, of course, the press is accountable in some circumstances. In 1919 the Supreme Court held that Congress could abridge First Amendment rights if spoken or written words “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The court ruled in 1931 against prior restraint of information, and in 1971, in the Pentagon Papers case, reconfirmed that principle despite the government’s argument built around national security. In 1943, though, the court approved prior restraint of broadcast journalists’ First Amendment rights by deciding that the government could license broadcasting. Out of that decision grew the Fairness Doctrine restricting the robust, wide-open debate assumed to be at the heart of free journalism.

On balance, the court’s rulings have affirmed the rights of a free press, although the student press was seriously restrained in the recent Hazelwood decision. As Miller reminded us in Denver, “what the courts hath given, the courts can taketh away.”

With a persistent current of feeling in the United States that somehow the press should be given its comeuppance, there is a clear and present danger to the venerable and cherished notion that only with a free press can a free people receive the uncensored information it needs to make its choices.

Journalists need to closely examine their professional behavior; that is essential. The people need to even more closely examine what is at stake if the First Amendment right to free expression is curtailed.