GOVT 2301 The Freedom of the Press and the Media

GOVT 2301

The Freedom of the Press and the Media

In this section we explore the press and the influence that the media

(however organized at any moment in time) has on the general public and

the governing process. This will include a look at the constitutional

issues associated with what limits may be placed on the press, and how it is

regulated, or not regulated, by government.

This is the second of the three sections which outline the nature of the external, political pressures

imposed on the governing institutions.

As you should recall from the previous section, the right to speak

freely, engage in press activities and organize are all established in

the First Amendment.

“Congress shall make no law 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.”

A few general links about the freedom of the press:

- America.gov.- George Orwell.

- Freedom House.- Wikipedia.

. . . and some dueling quotes from a couple of founders:

James Madison

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. - James Madison

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. - James Madison

Thomas Jefferson

Whenever the people are well-informed, they can be trusted with their own government. - Thomas

Jefferson

Where the press is free and every man able to read, all is safe.

- Thomas Jefferson

A democracy cannot be both ignorant and free. - Thomas

Jefferson

Recall that a democratic government is based on the collective preferences of the

population. A press of some sort is necessary to send out the

information necessary for the population to make sound

decisions about policy options.

What do the terms “the press” and “the media” refer to?

The terms are often used interchangeably.

A medium (the plural of media) is a carrier of something, in this case

information.

The Press

The term “the press” refers to any method, through print or electronic

means, that conveys information. The original printing press wasn’t the most

effective was to communicate large amounts of information.

A typical printing press could print only a limited amount of material, and its products could only be sent as quickly as the swiftest horse or

ship.

Technology has improved steadily since that devise. The nature of the

information has expanded as has the speed and scope of its delivery.

Here’s a chronological list:

NewspapersThe TelegraphPhotographs

RadioBroadcast Television

Cable TelevisionSatellites

The InternetCamera Phones, Facebook and Twitter

Each method creates its own unique issues, opportunities and

problems. The speed and breadth of communication has increased

exponentially. While access to the press has historically been limited,

today, anyone with an internet connection can participate.

And here’s a map of the internet:

One critical consequence of the change: The news, which once was available occasionally, is now 24/7.

Public officials were once able to conduct business in private – that

is now impossible.

The 24 hour news cycle.

- NPR- What the 24 Hour News Cycle

Has Done to Our Nation. - 24-hour news cycle conveys

power to the unworthy

Long detailed debate has been replaced with the sound bite.

What impact has that had on governing?

Is it possible for long term problems to be solved in a news environment that focuses on the

short term?

Next Topic:

Defining “press” and “media.”

Now, information can travel instantly to anyone with a

computer.

Information can now also be sent through the internet by anyone with a connection. The press is a two way communications device.

The Media

“The media” is what we use to refer to the various organizations

that use “the press” to gather, digest, organize and distribute

information. That information can be about political or non-political

entities.

“The Media” generally refers to the businesses that profit by collecting and disseminating

information.

Media and entertainment are a growing part of the American

economy.

We often hear people refer to at least three different “types” of

media:

- The Mainstream Media- The Conservative Media- The Alternative Media

The term “mainstream media” refers to the largest media outlets,

those that tend to set help the political agenda.

These include:

The New York TimesThe Washington Post

USA TodayWall Street Journal

Together these organizations tend to determine what items are news

worthy and what items are not.

This power is referred to as agenda setting.

Here’s a rule of thumb about media influence on politics:

“The media cannot tell the public what to think, but it can tell it what

to think about.”

Both the alternative and conservative media object to the mainstream media’s influence.

The alternative media believes the mainstream media is controlled by corporate interests and is biased in

that direction.

Ownership can place limits on what types of stories are and are

not covered in the press.

The alternative media tends to be to the left of the mainstream

media and includes:

The NationMother Jones

Pacifica Radio Network

Many mainstream media outlets are owned by large corporations. In recent years fewer companies

have come to own more and more of the large media outlets in the

U.S.

Who owns the majority of media outlets?

The Big Six

General Electric – NBC, etc…Walt Disney – ABC, etc…News Corp – Fox, etc…

Time Warner – CNN, etc…Viacom – MTV, etc…

CBS – CBS, etc…

This raises a question:

Does the concentration of media create a problems for the types of

views that are broadcast?

The Conservative Media includes

The National ReviewThe Weekly Standard

Fox News

The conservative media believes the mainstream media has a liberal

bias.

Proving bias can be a tricky thing though.

Another distinction worth noting

Old MediaNew Media

Old Media: Newspapers, Broadcast Television, Magazines.

New Media: Anything digitized, blogs, social media.

Old media has merged with new media, is there a real distinction

between the two anymore?

A traditional role of the press:

Promulgation

A press of some sort is also necessary to promulgate laws. Laws once passed, need to be

published. People need to know what the law is.

“Although the United States Constitution does not refer to "promulgation" as such, U.S. laws take effect upon being signed by the President of the United States or upon the overriding of a

presidential veto. In United States administrative law, a regulation may be said to be formally promulgated by an administrative agency when it appears in the Federal Register

and after the public-comment period concludes.” – wikipedia.

Until the establishment of the United States Printing Office in

1860, the U.S. government had to contract with newspapers to

promulgate laws and regulations.

This created an opportunity for patronage. Whichever party

controlled Congress could favor newspapers affiliated with their

party.

Some History

The development of a free press.

Before any of this this matters, the idea that the press ought to be

free has to be established, and the ability of the press to in fact be

free of governmental censorship and pressure has to be gained.

Governments have always attempted to spread information deemed necessary to the general

population, but often this was more propaganda than objective

news. They have also attempted to censor information.

Propaganda:

“a form of communication that is aimed at influencing the attitude of

a community toward some cause or position so as to benefit

oneself.”

Censorship:

The suppression of speech by some group, be it a government or

some other body.

Controlling information is key to obtaining and maintaining political

power.

Prior to the development of the printing press, few were literate or

possessed books. A copy of the Bible was very expensive, as expensive as a

house. They were written out by hand. People who did not have one

depended on others for its content.

Those who could communicate ideas – those who were literate – had power over those who could

not.

Since there were few books available, there was little need for the average person to be literate.

1440: Gutenberg developed a printing press with removable

type.

Gutenberg began printing Bibles, making them affordable for the first time, and individuals were

able to them read it for themselves and make their own decisions

about what it meant.

There is a current historical debate whether Guttenberg first printed

Bibles, or Latin grammars that could be used to learn how to read so that people could then read the

Bible (which would not be translated into English for some

time).

This promoted literacy, which was suddenly worth obtaining.

Due to the printing press, ideas were free to flow. Books were

easier to print and distribute. More people began to read.

But some ideas were still suppressed since they could upset

the political status quo.

The press provided opportunities for people to challenge orthodox

beliefs. Here’s an example:

The Trial of Galileo

By printing the results of his scientific inquiries, Dialogue

Concerning the Two Chief World Systems, he challenged the

Church’s preferred understanding of the relationship between the

Earth and the Sun.

And he ended up under house arrest.

Notice how the press makes it easier for people to challenge

authority. Little wonder authorities try to suppress it.

As with scientific speech, political speech – distributed through the

press - is often suppressed if it challenges existing leaders. We

covered this also in the previous section on speech.

SeditionSeditious Libel

Again: What is Sedition?

Any spoken or written attempt to: - bring government into

hatred or contempt- incites people to change government

- promotes discontent among the citizens

Remember from the previous section’s slides:

Sedition in its modern meaning first appeared in the Elizabethan Era (c. 1590) as the "notion of

inciting by words or writings disaffection towards the state or constituted authority".

"Sedition complements treason and martial law: while treason controls primarily the privileged, ecclesiastical opponents, priests, and Jesuits, as

well as certain commoners; and martial law frightens commoners, sedition frightens

intellectuals.“ - Wikipedia

Governments began to – and continue to in many cases – ban

books considered subversive.

Banned writings would be sometimes burned by

executioners. Interesting symbolism.

Book burnings are still common.

In 1559, the Vatican began publishing a “List of Prohibited Books.” See a list of

banned books here. Another list from the First Amendment Center.

This list includes names familiar to us: Thomas Hobbes, John Locke, and John

Stuart Mill.

“the primary criterion for banning books included anticlericalism, blasphemy,

heresy.”

Here’s an account of what may have been the first book burning in

Colonial America.

The Meritorious Price of Our Redemption, Justification, Etc.... by

William Pinchin, Gentleman, in New England

Remember that John Locke’s argument against the Divine Right of

Kings in the First Treatise on Government was clearly subversive

and seditious.

It was published anonymously, in secret, in the Netherlands, following

the signing of the British Bill of Rights.

As the authority of government began to be checked internally, opportunities

for a free exchange of ideas through the press emerged. After the signing of

the British Bill of Rights, and the containment of unchecked monarchic power, it became possible to publish

books challenging authority.

But the range of opinions offered as a result led some to propose

reestablishing limits on the press. He sought to prevent that from

happening.

An early defense of a free press was offered by John Milton in 1644

in Areopagitica

He argued against censorship and specifically the Licensing

Example: The Licensing of the Press Act 1662

An Act for Preventing the Frequent Abuses in Printing Seditious

Treasonable and Unlicensed Books and Pamphlets and for Regulating

Printing and Printing Presses

“Give me the liberty to know, to utter, and to argue freely

according to conscience, above all liberties” – Milton.

The idea that a free press – as well as free speech – is intertwined

with a free society becomes more commonly accepted.

There is still a correlation between press freedoms and the general

level of freedom in a given society. Click here for information on the current nature of Press freedoms

across the world.

Freedom House

In the previous section we discussed the ideas contained in

Cato’s Letters (1720 – 1723) which were printed, published and

circulated.

By 1742, David Hume could say the following:

“Nothing is more apt to surprise a foreigner than the extreme liberty which

we enjoy in this country of communicating whatever we please to the public and of openly censuring every measure entered

into by the king or his ministers.”

Once the freedom of the press becomes established, the business

opportunities develop. Writing, publishing and bookselling

becomes profitable.

The Copyright Act of 1709 (the Statute of Anne) establishes

copyright law. Authors have a right to their writings. This create an incentive to publish material for

profit.

Later, one of the delegated powers in the Constitution would allow Congress to grants to authors

ownership of their work.

Meanwhile, across the Atlantic, the Colonial Press is evolving.

The First Newspaper in the Colonies

Publick Occurrences Both Forreign and Domestick

- published by Benjamin Harris- image.

Closed after one issue since it did not have a permit. Permitting was an early means of censorship. The

crown – or its representatives – had to see work before it was printed and issue a permit if

accepted, and after a fee was collected. This was a type of tax.

As in Britain, early conflicts arose over what could be printed. Often this involved defining “sedition.” What did it take to successfully

prosecute a printer for sedition?

The Trial of John Peter Zenger

Accused, but later acquitted, of seditious libel. He accused, correctly, the governor

of corruption. But truth did not matter according to existing law. The jury

disagreed and ruled that one could not be charged with libel if one printed the truth.

Zenger has his defenders.

“The loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is

the best preservative of the whole. Even a restraint of the press would have a fatal

influence. No nation ancient or modern has ever lost the liberty of freely speaking, writing or

publishing their sentiments, but forthwith lost their liberty in general and became slaves.”

- 1733, James Alexander, The Weekly Journal, writing in defense of Zenger.

The case not only narrowed the definition of sedition, but

reinforced the concept of jury nullification (which we save for

2302).

The colonists were voracious consumers of books, especially

those that dealt with governmental principles.

Two Key Examples:

William Blackstone

Commentaries on the Laws of England.

Most books were written and published in Britain, but colonial

authors were developing.

The most important early figure was Benjamin Franklin.

His accomplishments were very broad, but as a press figure he

was:

A writerA printer

The Postmaster General of the Colonies

America’s First media magnate

As a publisher he is best known for Poor Richard’s Almanac

Beyond that, he demonstrated the political power that follows from

being able to distribute information.

Ironically, one of the events initiating the drive towards

revolution was a tax on the press.

The Stamp Act of 1765 taxed, among other things, newspapers.

Debates over revolution were carried out in the press, as were

later debates over the ratification of the Constitution.

The American Revolution and founding was covered in the press.

Most of the important documents from that era were printed and circulated among the public.

Example: The Dunlap Broadsides

These were the printed copies of the Declaration of Independence produced and distributed after it

was written. These were sent around the colonies and displayed

publicly to announce independence.

The Constitution was also printed publicly after it was signed.

The debates over the document picked up in newspapers soon after it was published. These happened in newspapers and pamphlets across the country.

Here is a chronology of the publication of the Federalist and

Anti-Federalist Papers.

Recall that the writing of the Constitution was not only done in secret, the notes were kept secret for decades. Madison’s note were

published 50 years after the document was signed. There’s

evidence he changed some of the notes.

This raises a question: How much coverage should be given to the inner workings of government?

Does day by day coverage make it more difficult for good decisions to

be made?

How might the Constitution have been affected if it was written out

publicly?

Would it have been as good a document?

This is an ongoing controversy: Should some things be done in

secret? Think of controversies over

The State Secrets Privilege.

Can the President keep certain internal matters secret, or does

that allow for corrpution?

This was a matter of debate in the 1980s when C-Span wanted to

televise floor proceedings in the House of Representatives and the

Senate.

- Here’s a recent controversy over televising health care negotiations.

A similar controversy exists over whether Supreme Court

proceedings should be televised – are at least recorded for later

broadcast.

Critics argue that once debates were televised, members of

Congress were no longer debating among themselves, but were

rather playing to their constituents.

New Media technology and the need to constantly obtain content

has made members of Congress far more subject to the press than

they have previously.

Question: Has the 24 hour news cycle made governing more

difficult than it has been in the past?

Perhaps things have no changed as much as we think. The founders were also concerned about the

excesses of the press.

John Jay Included criticisms of the press in Federalist #2

“It is not yet forgotten, that well grounded apprehensions of imminent danger induced the

people of America to form the Memorable Congress of 1774. That Body recommended

certain measures to their Constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the Press began to teem

with Pamphlets and weekly Papers against those very measures. “

A free press has always been controversial.

As we know already, the freedom of the press was added onto the

Constitution in the First Amendment as part of the packet

of amendments we collectively know as the Bill of Rights.

We also know that the restrictions on Congress established in the

First Amendment are not absolute. They can be overcome if a “greater

interest of society” justifies it.

Example: Is some information better kept secret? How do we

know?

The Supreme Court has struggled over the nature of press freedoms,

especially in the 20th Century.

The story is very similar to that of Free speech

What limits can be placed on press freedoms? What justifies them?

Constitutional Issues

Supreme Court decisions- a list from oyez.

For an overview of the topic go to the First Amendment Center

Here are few specific areas of controversy:

Libel and Defamation

”The communication of a statement that makes a claim, expressly stated or implied to be

factual, that may give an individual, business, product, group, government, or nation a

negative image. It is usually a requirement that this claim be false and that the publication is communicated to someone other than the

person defamed.” – Wikipedia.

Prior Restraint

“. . . a form of censorship in which one is prevented, in advance, from

communicating certain material, rather than made answerable afterwards. . . .

Prior restraint often takes the form of an injunction or other governmental order prohibiting the publication of a specific

document or subject.” – Wikipedia.

Shield Laws

A shield law or reporters' privilege is legislation designed to provide a news

reporter with the right to refuse to testify as to information and/or sources of

information obtained during the news gathering and dissemination process. –

Wikipedia.

Gag Orders

“an order, sometimes a legal order by a court or government, other

times a private order by an employer or other institution,

restricting information or comment from being made

public.” – Wikipedia.

Journalist Access

”The First Amendment bars Congress from making any law abridging freedom of speech or of the press. These

rights generally involve the dissemination of information, not the collection of it. Nevertheless, the Supreme Court said in Branzburg v. Hayes (1972) that the right to free press “could be eviscerated” if there

were no corollary right to gather news. The news media serve as surrogates for the public, reporting

information that individuals would want to know if they could witness it themselves.”

Privacy and Newsgathering

“Perhaps the greatest clash involving freedom speech has been the continuing collision

between freedom of the press and the right to privacy. Many First Amendment advocates view

this clash as the greatest threat to First Amendment freedoms. The press has been

targeted for its intrusive newsgathering techniques and for publishing information about people’s private lives.” First Amendment Center

Blogging

For years the Internet has been hailed as a First Amendment fantasyland where freedom of

expression could reach its zenith. U.S. District Judge Stewart Dalzell wrote in ACLU v. Reno, a

leading Internet free-speech case that later reached the U.S. Supreme Court and dealt with the regulation of online pornography, that the Internet was “the most participatory form of mass speech yet developed” and “a far more

speech-enhancing medium than print.”

Eras of the Press

The press in the US is argued to have gone through several distinct

eras.

See: History of American Newspapers.

The Revolutionary Press The Partisan Press The Yellow Press

The Objective Press The Adversarial Press

The Revolutionary Press

Described above. The press was used to argue about revolution.

Arguments about the decision to revolt from Britain and to ratify a

new Constitution were carried out in colonial newspapers.

The Partisan Press

As parties developed in the early years of the Republic, party run

newspapers were used to promote candidates and platforms.

George Washington and the American Aurora

Two principal early figures

John Fenno – Supporter of the Federalist Party

Philip Freneau – Supporter of the Democrat-Republican Party

Fenno edited the Gazette of the United States which supported the

policies of the Federalists and often featured the writings of

Alexander Hamilton.

Freneau edited the National Gazette which did the same for the

Democrat Republicans.

Tocqueville commented on the unruliness of the press during this

period of time.

“Liberty of the Press in the United States”

Many early newspapers were directly tied into local party

machines.

The idea that the press is biased towards certain policies and

candidates is not new.

Two useful reads:

The Effect of the Partisan Press on U.S. House Elections, 1800-1820.

The Rise of the New Partisan Press: Forward into the Past.

The Yellow Press

As newsprint became cheaper, and printing presses more efficient,

newspapers became very profitable. Lurid, sensational stories, not necessarily true,

helped sell newspapers.

Key Figures

William Randolph HearstJoseph Pulitzer

Their propaganda has been argued to have been responsible for the

Spanish - American War.

"Please remain. You furnish the pictures and I'll furnish the war.“

Hearst to Frederick Remington (allegedly) who was hired to

illustrate articles about the war and noted that everything seemed

calm.

Objective

As a consequence of the yellow press, attempts were made to

professionalize journalism and the news in order to provide objective information about current events

to the electorate.

Joseph Pulitzer funded the prizes that would be named after him as penance for the sensationalism he once promoted. He also provided the money that would establish

the Columbia School of Journalism.

The effort was to inform, rather than take sides. As a way of obtaining information, close

relationships developed between members of the press and

government officials.

Perhaps too close.

The press that covered FDR agreed to not discuss his paralysis. There

were understanding about what to report and what not to report.

- FDR’s Press Conferences.

This relationship lasted as long as it seemed mutually beneficial.

Things changed in the 60s.

The Adversarial Press

As hostility towards the Johnson and Nixon Administration grew due to the

Vietnam War and Watergate, members of the press learned that they could advance their careers by taking an adversarial stance towards

government

Example: Woodward and Bernstein’s investigation of

Watergate furthered their careers.

Woodward and Bernstein

Redford and Hoffman

Robert Redford plays you in the movies.

Think about it.

Not everyone is convinced that the relationship between the press

and government officials is at all adversarial.

Glenn Greenwald.

Where are we now?

Next topic:

The Impact of Technology on the collection and dissemination of

information.

NewspapersBooksRadio

TelevisionThe Internet

SpeedBreadth

nature of infotwo way communication

Technological development driven by need for faster and more comprehensive information

FinanceMilitary

Printing

From a press to a revolving drumCheaper newsprint

Telegraphs

Instantaneous communications over long distances.

Photography

Stories are accompanied with – sometimes gory – images.

Radio

The Voice can be heardFDR’s Fireside Chats

Helped increase presidential power

Television

Visual InformationNixon – Kennedy Debates

Click here for debate video

SatellitesVietnam

CableCNNFox

Digital CommunicationThe Internet

DecentralizedTwo way

Easily Networked

Recent changes

24 hour news cyclethe bloggosphere

Perhaps most important: This is the Golden Age of Information

Almost every major book, or idea ever published is available, free.

Almost any news event can be followed.

Any classic book or document can be found online

The Avalon ProjectOnline Library of Liberty

ThomasGoogle Books

Wikileaks

But is it too much?

How to sift through the wealth of information? Is it stiffling?

Irony: As more information is available, the coverage of events

seems to becoming more superficial and mean spirited.

Manipulating the Press

Government and Political organizations are not neutral

towards the press. They actively attempt to ensure that the press covers news in a manner that is

favorable to them.

Every organization contains an office which handles press

relations.

The most famous is the White House Press Secretary.

The current press secretary is Jay Carney. He began as a reporter and in 1993

covered the Clinton White House. Until 2008 he was Washington Bureau Chief for

Time Magazine.

Someone with this background presumably has familiarity with White House reporters and knows how they

think.

This demonstrates that a revolving door exists between the news

media, public relations and communications firms, and

communications offices in the executive and legislative branches.

Do political leaders even have to face the press anymore?

Sarah Palin has never given a press conference.

The relationship between the press and the branches of government.

Both antagonistic and opportunistic

John Fenno

Richard Freneau

Regulations

Federal Communications Commisson

Broadcasting

Important, subtle, turning point: The creation of the Government

Printing Office.

site, wikipedia

With its own printing press, the government no longer had to contract with newspapers to

promulgate laws.