The Freedom of the Press
Few provisions of the Bill of Rights to the U. S. Constitution stir deeper emotions today than that guaranteeing freedom of the press. Whether viewed as a protector of the people from the abuses of an unresponsive government or seen as a self-serving business allowed to poke into matters better left uncovered, freedom of the press -- and the degree of freedom that provision allows --is a most controversial issue.
As with virtually all of this nation's legal heritage, one must look back to the history of England to see the circumstances which led our founding fathers to include freedom of the press among the rights included in the Bill of Rights. Ultimately, the history of the provision extends back to the advent of the printing press.
Before the printing press came into use in the 16th century, mass communication was possible only by speech; even then, words spoken to an assembly would be lost, except for human memory, because there was no effective way to record and disseminate a speaker's ideas. The printing press made possible the mass distribution of ideas in a permanent form, and thus exposed rulers to adverse criticism. Then, as now, heads of state were often displeased by critics. As a result, there developed in England the law of seditious libel, which made it a crime to criticize the sovereign in such a fashion as to cause resistance to the crown.
In spite of the oppressiveness of this law as it was then applied, none of the early English bills and declarations of rights undertook to secure freedom of the press. It was left to the American colonists to perceive the need to guarantee in writing the freedom of the press.
None of the founding colonial charters provided for such freedom. However, the passage of years and the growing hostility toward England demonstrated to the colonists the value of the right to criticize in print the actions of the government.
Even before the right had been secured by any bill of rights, a courageous New York printer made freedom of the press a reality. In 1733, John Peter Zenger began printing the New York Weekly Journal, which immediately ridiculed the English governor, William Cosby, and his officials. By 1735, the governor had had enough, and Zenger was arrested and jailed for seditious libel. Cosby was confident of a conviction, but was stunned when Andrew Hamilton of Philadelphia, a most respected lawyer in the colonies, rose to defend Zenger.
Hamilton's defense was unique. He admitted that Zenger had published the offending newspaper articles, but he argued that the articles were true, so libel had not been committed. The jury was so moved by Hamilton's summation that they acquitted Zenger, holding, in effect, that truth is a defense to an action for libel, a principle now enshrined in the law.
The first American assertion of a right to a free press resulted from a resolution of the Continental Congress in 1774. The resolution enumerated the rights of colonists, as perceived by the Continental Congress, and included this statement:
"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs."
On June 12, 1776, the Virginia Colonial Convention adopted the Declaration of Rights, the first true bill of rights in the American sense. One of the members of the convention, George Mason, was responsible for virtually the entire declaration, including a statement "(t)hat the freedom of the Press is one of the greatest Bulwarks of liberty, and can never be restrained but by despotick Governments." One of Mason's fellow committee members was James Madison, who later became known as the father of the U.S. Constitution and a proponent of the Bill of Rights.
Following the Virginia example, eight of the remaining 12 colonies adopted constitutions containing bills of rights, although only Pennsylvania and Vermont made explicit reference to freedom of the press.
The Bill of Rights to the U. S. Constitution was added after the ratification of the Constitution itself as a concession to secure the approval of some states which were apprehensive because there was not a guarantee of fundamental freedoms in the original document. Although the First Amendment forbade Congress from passing any laws abridging freedom of the press, the old English law of seditious libel was reinstated by a Federalist Congress in 1798 with the passage of the Alien and Sedition Laws. Some editors were fined and jailed under these harsh laws, although the laws eventually lapsed.
During the years that followed, freedom of the press was not always scrupulously observed. During the Civil War, newspapers were sometimes shut down for publishing articles critical of the war effort. This form of censorship was not uncommon. However, in 1931, the Supreme Court put an end to "prior restraint" -- the practice of stopping a newspaper from printing a story because of what the story might contain -- by concluding that such restraint was forbidden under the First Amendment, which applied to the states as well as to the federal government under the Fourteenth Amendment.
The debate over the limits of freedom of the press continues. The question of prior restraint reappeared when the Pentagon Papers were made public, while publicity surrounding the arrest and trial of such people as Dr. Sam Sheppard and Jack Ruby brought into conflict the limits of a free press and the right of a defendant to a fair and impartial trial. The responsibility of the press has become more crucial with recent court decisions liberalizing the law of defamation and whittling away at the rights of public officials and public figures to sue for false statements about them. The prolonged Watergate coverage polarized American thought. To some, the press became the protector of our democratic institutions; to others, it seemed that the press would destroy our government.
The debate still continues. And the right to hear all viewpoints on every important question is guaranteed by freedom of the press, a vital part of our legal heritage.