Yves here. Of course, it’s no surprise that your humble blogger would take the point of view that “the press” is a lot broader than “big name news organizations.” However, it turns out that US courts also side with this view. But acknowledging the long-standing legal tradition of what “freedom of the press” amounts to, and therefore who by extension is “the press” undercuts the argument that Assange isn’t entitled to those protections by virtue of not hewing to journalistic norms by publishing what amounted to raw information. The argument is a proper reporter would have redacted sensitive personal information, like Social Security numbers in the DNC e-mails, or sensitive government information, as the Guardian and Washington Post did with their Snowden document publications (recall they
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Yves here. Of course, it’s no surprise that your humble blogger would take the point of view that “the press” is a lot broader than “big name news organizations.” However, it turns out that US courts also side with this view.
But acknowledging the long-standing legal tradition of what “freedom of the press” amounts to, and therefore who by extension is “the press” undercuts the argument that Assange isn’t entitled to those protections by virtue of not hewing to journalistic norms by publishing what amounted to raw information. The argument is a proper reporter would have redacted sensitive personal information, like Social Security numbers in the DNC e-mails, or sensitive government information, as the Guardian and Washington Post did with their Snowden document publications (recall they reviewed them with the US government first).
Be sure to read the section of this post which discusses the origin of the idea of professional journalism.
By George Washington. Originally published at Washington’s Blog
Many people believe that freedom of the press means that credentialed, professional journalists working for mainstream media outlets are protected when they criticize the government.
And they think that Julian Assange or some random blogger are not real reporters or publishers.
Indeed, a Google Search for “Assange is not a journalist/reporter/publisher” turns up 62,000 pages, many of them from the largest media corporations.
What Is Freedom of the Press
However, as we noted in 2014:
The First Amendment to the Constitution provides:
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.
The powers-that-be argue that freedom of the press only applies to large, well-heeled corporate media. For example, the Nation noted last year:
When the Department of Justice rolled out new policies intended to “strengthen protections for members of the news media” this summer, it wasn’t clear who belonged to the “news media.” Other DOJ documents suggest a narrow application to professional, traditional journalists. (The DOJ did not return a request to clarify the agency’s definition of “news media.”) The Federal Bureau of Investigation’s Domestic Investigations and Operations Guide excludes bloggers from the news media, along with “persons and entities that simply make information available,” like Wikileaks. These policies are guidelines, not directives, but as the Freedom of the Press Foundation points out, they are “part of a broader legislative effort in Washington to simultaneously offer protection for the press while narrowing the scope of who is afforded it.”
Senator Dianne Feinstein argued for an amendment that would have restricted the shield to salaried journalists. “Should this privilege apply to anyone, to a seventeen year-old who drops out of high school, buys a website for five dollars and starts a blog? Or should it apply to journalists, to reporters, who have bona fide credentials?”
(This is a silly distinction, given that many of the world’s top experts have their own blogs. And as the non-partisan First Amendment Center notes: “Traditional reporters now blog daily, and prominent bloggers show up in traditional media.”)
But the Free Speech and Free Press Clauses of the First Amendment don’t distinguishbetween media businesses and nonprofessional speakers ….
And the courts have ruled that the freedom of the press applies to everyone who disseminates information … not just giant corporate media companies who can afford to pay “salaries”.
For example, the United States Supreme Court has consistently refused to accord greater First Amendment protection to the institutional media than to other speakers:
- In Branzburg v. Hayes (1972), the U.S. Supreme Court described freedom of the press as “a fundamental personal right” that is not confined to newspapers and periodicals
- In Lovell v. City of Griffin (1938), the Chief Justice of the Supreme court defined “press” as “every sort of publication which affords a vehicle of information and opinion”
- First National Bank of Boston v. Bellotti (1978) rejected the “suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by” non-institutional-press businesses
- In Bartnicki v. Vopper (2001), the court could “draw no distinction between the media respondents and” a non-institutional respondent
Earlier this year, the Ninth Circuit Court of Appeals held that a blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless the blogger acted negligently. The Court held:
The protections of the First Amendment do not turn on whether the defendant was a trained journalist.
And the First Circuit agrees. As Gigaom reported in 2011:
One recent appeals court decision specifically referred to the fact that the ability to take photos, video and audio recordings with mobile devices has effectively made everyone a journalist — in practice, if not in name — and therefore deserving of protection.
In the decision by the U.S. Court of Appeals for the First Circuit, released just a few weeks ago, the judges pointed out that the First Amendment’s protection for freedom of the press “encompasses a range of conduct related to the gathering and dissemination of information,” and that citizens have the right to investigate government affairs and share what they learn with others. Judge Kermit Lipez also specifically noted that these protections don’t just apply to professional journalists. He said in his decision:
[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders [and] and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
The First Amendment Center correctly notes:
The purpose of the free press clause of the First Amendment was to keep an eye on people in power and maintain a check on corruption.
Supreme Court justices Black and Douglas explained in their concurring opinion in New York Times Co. v. United States (1971):
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people.
Indeed, the Founding Fathers made this clear even before the Revolutionary war started. Specifically, the Continental Congress – the legislative body of the Founding Fathers – wrote in 1774:
The last right we shall mention regards the freedom of the press …. whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.
These are the invaluable rights that form a considerable part of our mild system of government; that, sending its equitable energy through all ranks and classes of men, defends the poor from the rich, the weak from the powerful, the industrious from the rapacious, the peaceable from the violent, the tenants from the lords, and all from their superiors.
These are the rights without which a people cannot be free and happy, and under the protecting and encouraging influence of which these colonies have hitherto so amazingly flourished and increased. These are the rights a profligate Ministry are now striving by force of arms to ravish from us, and which we are with one mind resolved never to resign but with our lives.
In other words, the Founding Fathers understood that people who stand up to “oppressive” government officials are to be zealously protected … because “shaming” corrupt, powerful people “into more honourable and just modes of conducting affairs” is the only way to preserve liberty, justice and prosperity, and to remain “free and happy”.
The Founding Fathers Intended EVERYONE to Have Freedom of the Press
Let’s dig a little deeper into the background behind the First Amendment’s protection of the press …
Law School Professor and Director of the Constitutional Law Center at Stanford, Michael W. McConnell, notes:
Blackstone described the liberty of the press as the “undoubted right” of “[e]very freeman” to “lay what sentiments he pleases before the public.” The Jeffersonians agreed. The author of a book-length commentary on the Constitution, Jeffersonian legal scholar St. George Tucker, wrote that “the freedom of the press” means that “[e]very individual, certainly, has a right to speak, or publish, his sentiments on the measures of government.” The author of the first major constitutional treatise, a Federalist, Chancellor James Kent, took the same position: “every citizen may freely speak, write, and publish his sentiments.” Joseph Story agreed, describing the freedom of the press in these terms: “every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint.” So did state constitutions and state supreme courts. Anyone who went to a printer and paid him to print a pamphlet or book, or placed an advertisement in a publication, was entitled to exercise the freedom. There were no apparent dissenters from this proposition in the decades before or after the First Amendment.
This near-universal assertion of the broad right of “every citizen” to publish his sentiments is unsurprising, since at the time of the founding there were no professional journalists in the modern sense of the word. Much of the editorial content of newspapers was written by lawyers, farmers, schoolteachers, ministers, statesmen, and other citizens who were not journalists. The Federalist—written by three non-journalists and published in New York newspapers as occasional essays—is the most famous example, but there were hundreds of others. When the Founders spoke of the importance of “the press,” they were not talking about professional news media, but about the printing press, meaning the ability of people to disseminate ideas easily and inexpensively to a broad public. The licensing of the press, which was the great evil against which the Amendment was directed, applied to books and pamphlets as much as to newspapers. Indeed, pamphlets were among the most important publications for the influencing of public opinion. Thomas Paine’s Common Sense, which he self-published,is a famous example. 1753 essay entitled Of the Use, Abuse, and Liberty of the Press, by the future Constitutional Convention delegate William Livingston,stated that one of the great benefits of the printing press was that “the Press” could be used by “Writers of every Character and Genius,” including “[t]he Patriot,” “[t]he Divine,” “the Philosopher, the Moralist, the Lawyer, and men of every other Profession and Character, whose Sentiments may be diffused with the greatest Ease and Dispatch.”
In other words,”the press” as understood by the Founding Fathers was analogous to “blogs” or “websites” in our modern electronic era.
On this theme, Professor McConnell says:
There is no reason to believe that companies that make money on their publications or writers who earn their living from writing have a monopoly on the provision of the information and commentary on public affairs the Press Clause protects. At the time of adoption of the First Amendment, it was common for citizens of a variety of professions to use the press to express their views to the public. That is even truer today, when the Internet provides a ready platform for citizen journalists and commentators to contribute to public discourse. Some media critics believe that the proliferation of voices has diminished the common ground we enjoyed in the days of three homogeneous networks, but it would be odd to interpret the Press Clause, whose core meaning is that the government may not select the authors who inform the public, as a vehicle for reducing this diversity and imposing professional standards as a condition of publishing to the public. Many organizations whose primary purpose is something other than journalism—including the American Bar Association, the National Geographic Society, the Christian Science Church, the Smithsonian, Boy Scouts of America, and Americans United for Separation of Church and State—also publish popular newspapers or magazines, which surely are entitled to Press Clause protection. Indeed, in a prominent sequel to New York Times v. Sullivan, the Supreme Court treated the publisher for an ideological group, the John Birch Society, as a “media” defendant.
In 2012, University of Pennsylvania Law Review published an in-depth article by UCLA Law School Professor Eugene Volokh documenting the history of American understanding of “freedom of the press” (Professor Volokh generously gave us permission to quote extensively):
Early formulations of the freedom of the press spoke of it as a right of every “freeman,” “citizen,” or “individual.” These formulations often set forth narrow substantive views of the “freedom of the press.” But, whatever the scope of the right, it belonged to everyone (or at least all free citizens).
Blackstone, for instance, wrote in 1769 that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press.” Jean-Louis de Lolme, an author widely cited by 1780s American writers, likewise wrote in his chapter on “Liberty of the Press” that “[e]very subject in England has not only a right to present petitions, to the King, or the Houses of Parliament; but he has a right also to lay his complaints and observations before the Public, by the means of an open press.” The right to present petitions, of course, was not limited to the press as an industry, but really did belong to “[e]very subject.” De Lolme’s explanation suggests that the right to speak to the public via “an open press” likewise extended to all subjects, whether or not they used the printing press for a living.
State supreme courts in 1788 and 1791 similarly described the liberty of the press as “permitting every man to publish his opinions,” and as meaning that “the citizen has a right to publish his sentiments upon all political, as well as moral and literary subjects.” Justice Iredell described the liberty of the press in 1799 as meaning that “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public.” St. George Tucker, in 1803, defined the “freedom of the press” as meaning that “[e]very individual, certainly, has a right to speak, or publish, his sentiments on the measures of government.”
Several early state constitutions echoed this as well, providing that “[e]very citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Likewise, Justice Story, who wrote in 1833 but who had learned the law in the decade following the enactment of the Bill of Rights, described the First Amendment as providing that “every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person . . . or attempt to subvert the government.” These references to a right of “every freeman,” “every man,” “every citizen,” and “every individual” appear to refer to every person’s right to use printing technology. They are much less consistent with the notion that the right gave special protection to the few men who were members of a particular industry.
Early cases, such as the 1803 Runkle v. Meyer decision, likewise treat the “liberty of the press” as equivalent to the provision that “every citizen may freely speak, write and print on any subject.”27 And St. George Tucker, Chancellor Kent, and Justice Joseph Story all treated the First Amendment phrase “freedom of the speech, and of the press” as interchangeable with the state constitutional provisions that “every citizen may freely speak, write, and publish his sentiments.”
The view that “freedom of the press” covers “every citizen,” even people who aren’t members of the publishing industry, also makes sense given how many important authors of the time were not members of that industry.
Newspapers of the era were small enterprises, with few or no employees. Woodward and Bernstein were many decades in the future; Framing-era newspapers didn’t do sustained investigative journalism.
And while those newspapers doubtless contributed facts and opinions to public debate, some of the most important such contributions in newspapers came from people who were not publishers, printers, editors, or their employees—Madison, Hamilton, and Jay’s The Federalist essays are a classic example. “[N]ot a few of the country editors . . . depended for what literary work their vocation demanded upon the assistance of friends who liked being ‘contributors to the press’ without fee.”
It seems unlikely that the Framers would have secured a special right limited to this small industry, an industry that included only part of the major contributors to public debate. This is especially so given that some of the most powerful and wealthy contributors, such as the politicians and planters who wrote so much of the important published material, weren’t part of the industry.
The grammatical structure of the First Amendment likewise suggests that the freedom was the freedom “of every freeman” or “every citizen” to use the press-as-technology, and not a freedom belonging to the press-as-industry.
As Justice Scalia pointed out in Citizens United, the shared words “freedom of” in the phrase the “freedom of speech, or of the press” are most reasonably understood as playing the same role for both “speech” and “press.” The “freedom of speech” is freedom to engage in an activity, much like “freedom of movement” or “freedom of religion.” In particular, it is the freedom to use the faculty of speech. This suggests that “freedom of the press” is likewise freedom to engage in an activity by using the faculty of the printing press.
This is supported by sources that discuss the “freedom in the use of the press.” Thus, James Madison, in his 1800 Report on the Virginia Resolutions, wrote that American law provided “a different degree of freedom in the use of the press” than English law did. The Massachusetts response to the Virginia resolutions replied that the “freedom of the press” “is a security for the rational use, and not the abuse of the press.” St. George Tucker’s influential 1803 work, in discussing the freedom of the press, spoke of “[w]hoever makes use of the press as the vehicle of his sentiments on any subjects.” The freedom of the press was “freedom in the use of the press,” much as freedom of speech was freedom in the use of speech.
Likewise, Madison’s Report also quoted a phrase from Virginia’s ratifying convention: “We, the Delegates of the people of Virginia . . . declare and make known . . . that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.” Again, the phrase “the liberty of” is seen as applying equally to “conscience” and “the press.” Here too this suggests that, just as the liberty of conscience was seen during that era as each person’s freedom to worship or to think and speak as he wished on religious matters, so the liberty of the press meant each person’s freedom to publish.
The freedom of the press-as-technology, of course, was not seen as redundant of the freedom of speech. St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press as focusing on the printed….
Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that “freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control” and “the words freedom of the press, which form a part of the same sentence, mean the privilege of printing any thing without control.” Massachusetts Attorney General James Sullivan (1801) similarly treated “the freedom of speech” as referring to “utter[ing], in words spoken,” and “the freedom of the press” as referring to “print[ing] and publish[ing].”
And these sources captured an understanding that was broadly expressed during the surrounding decades. Bishop Thomas Hayter, writing in 1754, described the “Liberty of the Press” as applying the traditionally recognized “Use and Liberty of Speech” to “Printing,” an activity that Hayter described as “only a more extensive and improved Kind of Speech.” Hayter’s work was known and quoted in Revolutionary-era America.
Similarly, William Bollan (1766) described “printing” as “a species of writing invented for the more expeditious multiplication of copies,” and asserted that “freedom or restraint of speech and writing upon public affairs have generally been concomitant”; because of this, Bollan argued, “restraints of writing” were likely to erode the “liberty of speech” and not only of writing, and “those who desire to preserve the [liberty of speech] ought by all means to take due care of the [freedom of writing].” And Bollan used “liberty of the press” and “the freedom of writing” (in a context suggesting printing) interchangeably.
Later, Francis Holt (1812) defined the liberty of the press as “the personal liberty of the writer to express his thoughts in the more [im]proved way invented by human ingenuity in the form of the press.” William Rawle (1825) likewise characterized “[t]he press” as “a vehicle of the freedom of speech,” adding that “[t]he art of printing illuminates the world, by a rapid dissemination of what would otherwise be slowly communicated and partially understood.”
Without the freedom of the press, the freedom of speech might not have been viewed as covering printing, given that printing posed dangers that ordinary “speech” did not. Indeed, in the centuries before the Framing, governments tried to specifically constrain the use of the press-as-technology because they found it to be especially dangerous. The free press guarantees made clear that this potentially dangerous technology was protected alongside direct in-person communications.
Professor Volokh goes onto document how freedom of the press has continuously been interpreted by the courts up to today as applying to everyone, not just professional, credentialed journalists.
Postscript: So where did this idea of “professional journalists” come from? It may have been created by the Father of modern propaganda, Edward Bernays.
Award-winning veteran journalist John Pilger explains:
Edward Bernays, the so-called father of public relations, wrote about an invisible government which is the true ruling power of our country. He was referring to journalism, the media. That was almost 80 years ago, not long after corporate journalism was invented.
It is a history few journalist talk about or know about, and it began with the arrival of corporate advertising. As the new corporations began taking over the press, something called “professional journalism” was invented. To attract big advertisers, the new corporate press had to appear respectable, pillars of the establishment-objective, impartial, balanced. The first schools of journalism were set up, and a mythology of liberal neutrality was spun around the professional journalist. The right to freedom of expression was associated with the new media and with the great corporations, and the whole thing was, as [University of Illinois at Urbana–Champaign Communications Professor] Robert McChesney put it so well, “entirely bogus”.
For what the public did not know was that in order to be professional, journalists had to ensure that news and opinion were dominated by official sources, and that has not changed. Go through the New York Times on any day, and check the sources of the main political stories-domestic and foreign-you’ll find they’re dominated by government and other established interests. That is the essence of professional journalism. I am not suggesting that independent journalism was or is excluded, but it is more likely to be an honorable exception. Think of the role Judith Miller played in the New York Times in the run-up to the invasion of Iraq. Yes, her work became a scandal, but only after it played a powerful role in promoting an invasion based on lies. Yet, Miller’s parroting of official sources and vested interests was not all that different from the work of many famous Times reporters, such as the celebrated W.H. Lawrence, who helped cover up the true effects of the atomic bomb dropped on Hiroshima in August, 1945. “No Radioactivity in Hiroshima Ruin,” was the headline on his report, and it was false.
Consider how the power of this invisible government has grown. In 1983 the principle global media was owned by 50 corporations, most of them American. In 2002 this had fallen to just 9 corporations. Today it is probably about 5. Rupert Murdoch has predicted that there will be just three global media giants, and his company will be one of them. This concentration of power is not exclusive of course to the United States. The BBC has announced it is expanding its broadcasts to the United States, because it believes Americans want principled, objective, neutral journalism for which the BBC is famous. They have launched BBC America. You may have seen the advertising.
The BBC began in 1922, just before the corporate press began in America. Its founder was Lord John Reith, who believed that impartiality and objectivity were the essence of professionalism. In the same year the British establishment was under siege. The unions had called a general strike and the Tories were terrified that a revolution was on the way. The new BBC came to their rescue. In high secrecy, Lord Reith wrote anti-union speeches for the Tory Prime Minister Stanley Baldwin and broadcast them to the nation, while refusing to allow the labor leaders to put their side until the strike was over.
So, a pattern was set. Impartiality was a principle certainly: a principle to be suspended whenever the establishment was under threat. And that principle has been upheld ever since.