Feature September 25, 2018

The Fourth Estate

Freedom of the Press and American democracy

Freedom of the press was enshrined in the First Amendment to the U.S. Constitution as a fulfillment of the republican enterprise on which the founders of the United States had embarked: self-governance. Thomas Jefferson, the apostle of liberty, wrote in a 1789 letter to Richard Price, a philosopher and minister, the premise that guides us still: “Wherever the people are well informed they can be trusted with their own government. Whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.”

Jefferson’s faith in the capacity of the people to correct wayward governmental actions, once armed with the pertinent facts and knowledge, rested on a comparable faith in the abilities of a free and independent press to disseminate information. John Adams, a Founding Father and second president of the U.S. wrote in a 1765 dissertation: “None of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America than the press.”

And it fell to James Madison, commonly regarded as the Father of the Constitution and the Bill of Rights, to lay bare in frank, unsentimental terms the price to be paid by an aspiring republic stripped of essential information: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives you.”

Madison spoke for a generation that acknowledged an inextricable link between freedom of the press and self-rule. Under our Constitution, he wrote in 1800, “The people, not the government, possess the absolute sovereignty … the press has exerted a freedom in canvassing the merits and measures of public men … On this footing the freedom of the press has stood; on this foundation it yet stands.”

The First Amendment

The words that so distinguish democracy from other forms of government—the First Amendment—states, in part: “Congress shall make no law … abridging freedom of the press.” Freedom of the press was given a preferred position in our constitutional system, principally because of its critical role in the scheme of popular government. The framers of the Free Press Clause understood that the electoral process would be rendered meaningless if voters were not informed about candidates’ qualifications for office and where they stood on issues of public concern. The press, moreover, was seen as an institution—the Fourth Estate—that could hold governmental officials accountable to the people. In this capacity, the press functioned as an informal but essential part of the system of checks and balances, exposing abuse and aggrandizement of power, mismanagement, self-serving actions that undermined the public interest and laws, and programs and policies that violated American civil liberties.

Presidents and the Press

As indispensable as it is to American democracy, freedom of the press seldom has been free of controversy. Presidents of both political parties have engaged in often-contentious relations with the press since the dawn of the republic.

Despite his affinity for a free press and his conclusion that it was indispensable to the maintenance of civil liberties, self-governance, and the republic itself, Jefferson on more than one occasion denounced particular press stories as intolerable. Abraham Lincoln suppressed newspapers during the Civil War but regretted having to do it. Theodore Roosevelt criticized those whom we would call investigative reporters as “muckrakers.” In his autobiography, however, he later characterized the Washington press corps as “a singularly able, trustworthy and public-spirited body of men, and most useful of all agents on the fight for efficient and decent government.”

In 1941, Franklin D. Roosevelt fumed over press reports that he was seeking ways to aid American allies without consulting Congress. Richard Nixon repeatedly castigated the press for its “liberal biases.” He secretly—and illegally—wiretapped reporters, and placed some of them on his infamous “enemies” list. Ronald Reagan embraced the principle of freedom of the press but wondered why the press wasn’t on “our side.” George H. W. Bush shared Reagan’s sentiments about the importance of press freedom but complained about news stories that disclosed his deceptive politics and diplomacy in the run up to the Gulf War. Bill Clinton, told by The New York Times that its critical editorials of the president represented “tough love,” responded, “Well, don’t forget the love.”

Alternately baffled, frustrated, dispirited, and angry about stories that have criticized their “merits,” and “measures,” and perhaps embarrassed their administrations, American presidents, nonetheless, have generally recognized the critical link between a well-informed citizenry and self-governance. President John F. Kennedy likely spoke for the President’s Club when he observed in a 1962 Oval Office interview with three television network reporters that the press is invaluable, “… even though it is never pleasant to be reading things that are not agreeable news … Even though we never like it, and even though we wish they didn’t write it, and even though we disapprove, there isn’t any doubt that we could not do the job at all in a free society without a very, very active press.”

The Trump Era

Relative to his predecessors, President Donald Trump has clearly taken a much more antagonistic approach toward the press. Since taking office in January 2017, President Trump has frequently denounced the press—at political rallies, meetings and press briefings—as the “enemy of the people,” a phrase first used during the French Revolution’s Reign of Terror in which “political crimes” were punishable by death. While it is safe to assume Trump is not advocating violence as a solution to political opposition, it is nonetheless a provocative metaphor to employ.

President Trump’s use of the term, moreover, has not occurred in a vacuum. Indeed, he has excoriated the media as “dishonest people,” “sick and dangerous” people who “could start wars.” In mid-July, Trump addressed the annual convention of the Veterans of Foreign Wars. Expanding on his mantra of “fake news,” he told audience members, “What you are seeing and reading [about the administration] is not happening,” he said.

Trump’s apparent low regard for the press has been further manifested by his decision, on occasion, to ban from public media events reporters representing The New York Times, The Washington Post, and CNN.

This public hostility toward the press has spread alarm through the industry. In late July, the president met with The New York Times’ publisher, A. G. Sulzberger and editorial page editor, James Bennet. Sulzberger encouraged Trump to criticize news stories that he felt were inaccurate or unfair but urged him to refrain from characterizing the press as “the enemy of the people.” Sulzberger told Trump that his anti-press rhetoric was “inflammatory,” “harmful and dangerous,” and that it was contributing to the rise of threats against reporters. The Times, Sulzberger added, was concerned about the safety of its staff and had begun posting guards at its offices. He pointed out, as well, that the use of Trump’s language by foreign leaders “was being used to justify sweeping crackdowns on journalists,” and that it “was putting lives at risk.”

President Trump’s assertion that the press is “the enemy of the people,” has played well with his base, but it surely collides with the Founders’ conception of the role of the press in protecting and advancing American democracy. As Madison wrote in 1799, “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

Triumphs of a Free Press

One need not look too far back in history to find real public benefits achieved through dogged investigation and reporting by journalists. For instance, there were the press investigations in the early 1900s that revealed the foul, rat-infested, and hazardous conditions that pervaded the Chicago stockyards and meatpacking industry. Then there were early 20th century journalistic efforts that exposed the existence and influence of giant trusts and monopolies, including the sugar, grain elevator, railroad and beef trusts. The dangers of those trusts, familiar to farmers and wage earners, had not been grasped by middle-class voters at the time, which meant they had not entered the political consciousness of the nation.

In more recent years, Americans have been the beneficiaries of journalistic disclosures about racial discrimination in housing, gender discrimination in the workplace, wanton pollution of lakes and rivers by chemical companies, and safety issues with automobiles and airplanes.

On the foreign front, the list of press disclosures about governmental deception and scandal is lengthy, including the My Lai Massacre and the Agent Orange tragedy. And publication of The Pentagon Papers by The New York Times and The Washington Post disclosed presidential deception about America’s covert slide into the Vietnam War, a war that claimed the lives of some 60,000 soldiers.

Perhaps the most notorious example of the press uncovering governmental malfeasance was the Watergate scandal. The Post’s Bob Woodward and Carl Bernstein became household names for their diligent reporting on the Watergate break-in and subsequent cover-up. Arguably, their work led to the resignation of Richard Nixon and to the fall of his administration. Without those investigative efforts, Nixon may have completed his term in office; our history would certainly be different.

Facts, Evidence, Truth

The informing function of the press, exalted by Madison for its essential service to the republic, points to factors that distinguish democracies from other systems of government: facts, evidence and truth.

Alexander Hamilton, who teamed with Madison and John Jay to produce the Federalist Papers—letters written to newspapers at the time to promote the ratification of the proposed Constitution—laid bare in Federalist No. 1 the great aim of the Founders’ experiment in self-governance. Hamilton addressed the vital but lingering question of “whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.”

America’s Founders, children of the Enlightenment, were steeped in an intellectual tradition that championed the principles of republicanism and the importance of reason, facts and truths, the foundation for government based on “reflection and choice.” What’s more, Madison, in particular, advanced the thought that freedom of the press was the bedrock of all liberties. In the Virginia Resolution he described freedom of the press as “… that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.”

Seditious Libel

While Enlightenment thought, with its emphasis on reason, was the dominant intellectual force for 18th century thinkers, it supplied no definitive answer to the question of the scope of freedom of the press. The governing tradition—inherited from English law— afforded an exemption from “prior restraint”: government action to suppress speech (in any form) before it happens. However, tradition did permit the punishment for “seditious libel,” that is, speech that impugned or criticized the government or its officials, advocated the overthrow of government through violence, or incited citizens to change the government through means deemed illegal.

Madison, for one, railed against the doctrine of seditious libel: “It would seem a mockery to say that no laws shall be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.”

In practice, prosecutions for criticism of the government were infrequent. Public opinion, moreover, was evolving and tended toward a libertarian view that promoted broader protection for publications. There was, then, a gap between legal restraints on press freedom and the actual practice of freedom of the press.

Press practices in early America, from the early colonial period through the Revolutionary War years and into the drafting of the Constitution and the Bill of Rights, and beyond, outpaced theory and law, which were mired in the repressive common law doctrine of prior restraint and criminal libel. To bold Americans, bent on distributing information, speaking truth to power, and holding government accountable, legal restraints on the press seemed trifling.

The prospect of war with France in 1798, however, caused the Federalist-dominated Congress to pass the infamous Sedition Act, which aimed to impose on the American citizenry the English law doctrine of seditious libel. The Senate passed the measure on July 4, just seven years after ratification of the Bill of Rights.

When President John Adams signed the bill into law, it was clear to all that the specific purpose behind the statute was to muzzle pro-French republicans—followers of Thomas Jefferson—who were given to criticizing President Adams and Congress. The act provided punishment for criticism of the president and Congress, but not the vice-president, Thomas Jefferson. Publicly, however, the Federalists maintained that the law protected American national security interests. It was that claim that led Madison to declare to Jefferson: “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.”

The Sedition Act was used to prosecute 14 men, most of whom were editors and owners of pro-Jefferson newspapers in New York, Boston, Philadelphia and Richmond. The political nature of the statute, part of what Jefferson described as “the reign of witches,” was made manifest when Secretary of State Timothy Pickering—appointed by President Adams—encouraged prosecutions to silence editors of newspapers that supported Jefferson.

Among the most prominent citizens prosecuted under the law was Matthew Lyon, a Republican (that is, a Jeffersonian) member of Congress from Vermont. Rep. Lyon was prosecuted for a letter to the editor that he had written to the Vermont Journal. He had written that President Adams pursued “a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation and selfish avarice.” The indictment charged that Lyon’s letter was “scurrilous, feigned, false, scandalous, seditious and malicious.” Lyon was convicted, sentenced to four months in prison and fined $1,000. While in prison, his constituents elected him to another term in the House of Representatives.

Free Speech and ‘The Revolution of 1800’

The Federalists’ gross abuse of power and attack on the First Amendment in enacting the Sedition Act was the chief reason for their overwhelming defeat in the election of 1800, in which Jefferson and his party were swept into power in what has been characterized as “The Revolution of 1800.”

The statute triggered a national discussion and debate about the scope of freedom of the press. It spawned, among other things, the modern theory of the absolutist interpretation of the First Amendment: that free government depends for its very existence and security on freedom of political discourse. The scope of freedom of the press was determined by the nature of government and its relationship to the people. As the theory explained it, since the American government was the servant of the American people, exists by their consent and for their benefit, and is constitutionally limited, officials may not put restraints on what the citizenry can say or write. The concept of seditious libel had no place unless government was superior to the people. But as Madison, among others made clear, the people are sovereign and superior to the government.

The Sedition Act of 1798 expired on March 3, 1801, the day before Thomas Jefferson was inaugurated. It has never been revived.

Sullivan and The Pentagon Papers

On March 9, 1964, in New York Times v. Sullivan (a libel case in which the Court held that to prevail plaintiffs who are public officials must prove “actual malice” on the part of the publisher of a said libelous statement) Justice William Brennan’s opinion for the Supreme Court declared that the statute violated the central meaning of the First Amendment: “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history … Thus 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 include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Justice Hugo Black further exalted the checking function of the press in the landmark Pentagon Papers Case in 1971, in which the U.S. Supreme Court upheld the right of The New York Times, The Washington Post and other newspapers to publish the Pentagon Papers, an exhaustive study of America’s involvement in the Vietnam War. The case, memorialized in the film, “The Post,” raised the possibility that President Richard Nixon might succeed in preventing publication of the Pentagon Papers on the grounds of protecting national security.

In what proved to be his last opinion for the Court, before his illness and death in September, Justice Black wrote on June 30, 1971, an opinion that represented an eloquent testimony to the purposes and aims of the founders’ creation of the Free Press Clause: “The press was protected [in the First Amendment] so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in the government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of the government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped they would do.”

Adams and Madison and Jefferson could not have said it better. Freedom of the press was and is indispensable to American democracy. It is a cherished right that Americans have defended for the better part of two centuries. For all of its occasional flaws, failures and shortcomings, it is a right for which all citizens devoted to constitutional government, the rule of law, and liberty itself must yet fight.


This article appears in the Fall 2018 Issue of Territory Magazine.