by Matthew L. Schafer
On May 29, 1787, Charles Cotesworth Pinckney, a South Carolinian who would later become the Foreign Minister to France, submitted a proposal for the organization of the soon to be formed new federal government. In his proposal, he included a precursor of the First Amendment to the United States Constitution.
“The legislature of the United States shall pass no law on the subject of religion nor touching or abridging the liberty of the press,” he wrote.
The Constitution would eventually be ratified a year later without Pinckney’s clause protecting the freedom of speech. Nonetheless, the Founders had struck a deal to ratify the Constitution on the condition that Congress work to pass a Bill of Rights once the Constitution was in force.
Three years later on December 15, 1791, Congress ratified the Bill of Rights. After several revisions, Congress had included the following language for the First Amendment:
Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .
Justice Louis Brandeis would later say of the First Amendment:
Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Brandeis wrote those words in a 1927 concurrence in Whitney v. California, a Supreme Court case that sent Ms. Anita Whitney to jail for trying to organize the Communist Labor Party in California in 1919.
Two-hundred and twenty years after the First Amendment went into force and over 80 years after Brandeis wrote his stirring concurrence in Whitney, many would hope that First Amendment ideals are alive and well–that the ideals embodied in the First Amendment, and in the Western cannon almost 400 years ago, would have been realized.
“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,” John Milton wrote in 1644.
Yet, that old ideal that men should have the liberty to speak freely, one pulled painfully through history by men who no doubt understood its importance to the realization of both a healthy individual and a healthy state, has not yet been fully realized.
Earlier this month, Frank La Rue, the U.N. special rapporteur for the protection of free expression, admonished the United States and local municipalities for arresting or otherwise impeding reporters covering the Occupy protests around the country. The admonishment went uncovered by the press for all intents and purposes.
Free Press, a national, non-profit, non-partisan media reform organization, has documented 34 instances of police arresting journalists who were in the middle of covering the protests. Major news organizations, the New York Civil Liberties Union, and the New York Press Club sent letters protesting the treatment of reporters to city officials.
“I believe in city ordinances and I believe in maintaining urban order, [b]ut on the other hand I also believe that the state — in this case the federal state — has an obligation to protect and promote human rights,” La Rue said. “If I were going to pit a city ordinance against human rights, I would always take human rights.”
Last week, Mayor of New York Michael Bloomberg said that police did not prevent anyone from reporting. This, however, seems difficult to wash with the fact that police did arrest reporters, which likely inhibited those arrested reporters from actually reporting for some period of time.
It is not only reporter arrests that illustrate attacks on the news media, but subpoenas against journalists. Indeed, it is one thing if a journalist “accidentally” gets swept into the fray of a protest, it is another when the government actively pursues a journalist’s notebook through orderly legal channels.
When Branzburg v. Hayes, a 1972 Supreme Court decision subject to a slew of interpretations regarding the freedom of the press to be free from government subpoenas, was handed down, the government issued few subpoenas against reporters. Such is not the case anymore.
This week, a federal judge issued a subpoena that would require a Chicago Tribune reporter to turn over all information on a juror at issue in a high-profile case. The Tribune fought the order, and the judge later said that the reporter need not produce her notes, finding that they would not be useful.
“From our perspective, it really doesn’t matter whether Sweeney’s notes contain anything that would help either side in this case,” the Tribune wrote after the decision. “Requiring reporters to do the work of the judicial system compromises the work they do for the public. Journalists’ agenda is to collect and present facts fairly, as independent witnesses. If attorneys and others can demand access to that material for their own purposes, then reporters can be perceived as their agents. Sources will be reluctant to talk freely, or at all.”
While the Tribune can claim success in this instance, it is just a small step toward judicial restraint in issuing subpoenas for reporters notebooks. This victory does not spell the end of orders against journalists, however. In 2006 alone, over 7,000 state and federal subpoenas were issued against news organizations, a study suggested.
The subpoenas demand anything from substantive notes to confidential sources to the who, what, when, where, and why. The topics of the subpoenas range from information about juror tampering to drugs to national security. Essentially, everything.
National security stories especially put journalists at risk of jail time if they refuse to divulge sources. There are success stories even in the national security realm, however. For example, James Risen, a New York Times reporter, recently succeeded in convincing a judge not to enforce a subpoena against him in a case related to his 2006 book State of War, which details a botched CIA operation in Iran.
“A criminal trial is not a free pass for the government to rifle through a reporter’s notebook,” Judge Leona Brinkema wrote in favor of Risen.
Of course, corporate limits on speech, while not prevented by the First Amendment, which applies only to federal and state government, are also concerning. Such limits are especially concerning when they are enforced by the government–at which point the First Amendment’s protections would kick in.
Corporate limits on speech manifested themselves during the Gulf oil spill last year when reporters were repeatedly blocked from taking photographs and reporting on the spills. The situation was so desperate that Anderson Cooper finally exclaimed, “We are not the enemy here.”
It would be false to say that the First Amendment’s less-than-perfect current condition wasn’t the one the Founders had in mind when they ratified the Bill of Rights. Indeed, the Founders are many of the same men who would later pass the now embarrassing Alien and Sedition Acts of 1798, which radically restricted speech and gave the Federalist goverment the power to arrest anyone, including journalists. Nonetheless, by writing the First Amendment into a timeless document, the Founders have forever challenged America to live up to the ideal–not down to the failings of the past.
Luckily, speech does garner greater protection than it has in the past. On the whole, prior restraints preventing the press from publishing are rare and social media has reinvigorated the public sphere generally. (Though even that is threatened.) Moreover, alternative media–enabled by the Internet–has brought alternative views to millions. And, for the most part, the Supreme Court has defended free speech vigorously.
That said, there is a future that imagines a greater free trade in ideas, spurred not only by the protections promised by the Bill of Rights and enforced by the judiciary, but technological advancements that make the marketplace bigger, more diverse, and vibrant.
Bill of Rights Day should be a reminder to everyone that the imagined future is not here yet; that there is work to be done; and that everyone has a stake in seeing that that work is completed. If it is not completed, everyone will be the worse for it.
For now it is worth hoping along with Justice Black, who wrote in response to the effects that McCarthyism had on free speech in America, that brighter days are ahead.
“Public opinion being what it now is, few will protest the conviction of these Communist petitioners,” Black wrote sixty years ago. “There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”