Courtesy Library of Congress

The Inadequacy of American Press Freedom

by Sam Lebovic

In recent years, the relationship between First Amendment rights and American democracy has become unsettled. For decades, a broad political consensus had presumed that a press free from government interference was the sine qua non of democratic liberty; a stronger First Amendment would mean a stronger democracy. As a result, First Amendment rights are more protected today than at any time in American history. Yet the press is beset by crisis. The “mainstream media” is a regular whipping boy in populist political rhetoric. With advertising revenues collapsing, newspapers have been forced to lay off staff, if not close their doors. Meanwhile, the news media has struggled to report on the activities of the secretive security state during the War on Terror—when inside sources share such information, they risk prosecution for illegal leaking. And since the 2016 elections, fears about fake news have proliferated. Americans are taking a closer look at the free press they have long lionized, and they do not particularly like what they see.

Almost a hundred years ago, a young Walter Lippmann was similarly disillusioned with the nation’s press. In 1919, in a series of articles in the Atlantic, he cast a cynical eye over the sensationalist headlines of the commercial press and the rise of wartime censorship and propaganda. In passages that sound familiar today, he worried about the rise of a “pseudo-environment of reports, rumors, and guesses” and bemoaned how easily the news spread the “contagion of unreason.” And even though the First Amendment was just beginning its meteoric twentieth-century rise—Oliver Wendell Holmes had outlined the modern vision of free speech in his Abrams v. United States dissent only weeks earlier—Lippmann already thought that the right to publish without state interference was inadequate to confront the problems of the modern press. In fact, Lippmann thought that protecting rights to free opinion and expression were less important than protecting what he called the “stream of news” upon which opinions were based. “Protection of the sources of its opinion,” Lippmann soon insisted, “is the basic problem of democracy. Everything else depends on it.”[1]

As he wrestled with this difficult problem over coming years, the increasingly conservative Lippmann would come to scale back his commitments to democracy, free speech, and the potential of public opinion. By 1926 he was arguing that the “public must be put in its place…so that each of us may live free of the trampling and roar of the bewildered herd.”[2] We can see early signs of a similar political trajectory in contemporary fears about fake news and suggestions that it might be possible to regulate away misinformation. But many other Americans in the twentieth century, as concerned about the “stream of news” as Lippmann, responded to crises in the press not by scaling back their belief in the First Amendment but by expanding it. They continued to argue that a more democratic press required not only freedom of expression but also a commitment to what some called “freedom of the news.”

In this article, I want to look at the way that mid-century press reformers sought to mitigate two new problems that remain with us today: corporate consolidation in the news industry and the rise of state secrecy. These topics rarely make it into our histories of press freedom, which remain focused primarily on First Amendment jurisprudence as developed by the Supreme Court. But if we look beyond the courts to broader political and intellectual debates about press freedom, we can find both more expansive understandings of the right to a free press and a more complex story about the rise of the modern First Amendment. In so doing, we can find a better guide to the problems that confront American press freedom today.

When the First Amendment was written in the late-eighteenth century, the printing press did not radically differ from Gutenberg’s, invented centuries earlier. Over the next century, however, technological and economic developments transformed the press. By the first decades of the twentieth century, a newspaper industry had emerged, dominated by mass, urban newspapers with vast circulations. Because they were appealing to advertisers, these newspapers had the potential to be highly profitable. But to reach as many readers as possible, they required massive investments in production and distribution infrastructure. Newspapers were therefore increasingly owned by wealthy publishers and, as advertising revenues flowed to the most successful papers, smaller newspapers were forced to close.

As a result, by the first decades of the twentieth century the newspaper industry had begun a period of consolidation that has continued into the present. We often think that the decline of the newspaper industry began with the rise of the internet, but the U.S. actually had its highest number of newspapers in 1909. Between 1919 and 1942, at a time when the population expanded by almost 30 percent, there was a roughly 15 percent decline in the number of newspapers in the nation. Those papers that remained were increasingly monopolistic. In 1910 there were 689 cities with competing newspapers; by 1960, there were only sixty. And these profitable, monopolistic newspapers were frequently joined in chains and headed by flamboyantly wealthy newspaper barons who played an outsized role in American political life. William Randolph Hearst was the textbook case.

In the Progressive and New Deal era, this decline of newspaper diversity was seen by many as a real challenge to press freedom. Press critics like Upton Sinclair and George Seldes argued that if a small group of wealthy businessmen owned the press and depended on advertising revenues from big corporations, then newspapers could not be truly democratic or report fairly on the economic and labor crises confronting the nation. During the depression, when newspaper publishers like Hearst and Robert McCormick emerged as reactionary opponents of the New Deal, concerns about the undemocratic nature of the press reached a crescendo. Boycotts and mass meetings were held to protest Hearst, who was dubbed one of the “forerunners of American fascism” by Raymond Gram Swing.[3] (It is no accident that Citizen Kane, the cultural masterpiece of the era, trained its sights on the newspaper publisher.) On election night in 1936, pro–Franklin D. Roosevelt crowds celebrated by egging the Chicago Tribune building and setting fire to a delivery truck. In a nationally broadcast debate in 1939, New Deal Secretary of the Interior Harold Ickes declared that “the lack of a free press is the most serious threat confronting our democratic government.” The “vast financial investment” of the papers, Ickes concluded, “binds them closely to the business world from which they draw their sustenance. Freedom is impossible…when the counting office holds the whip hand.”[4] It’s hard to imagine a later cabinet member arguing that capitalist control undermined the freedom of America’s press, but it was a very different moment for populist outrage against the political biases of the “mainstream media.”

New Dealers sought to reform the economic structure of the newspaper industry so that a greater diversity of newspapers could exist and a greater range of information could reach the public. As part of the National Recovery Administration, they proposed a code of fair trade practices for the newspaper industry intended to prevent large newspaper chains from discriminating against smaller papers. Anti-advertising activists affiliated with the Food and Drug Administration attempted to ban false advertising, in part to protect consumers but also to roll back newspapers’ dependence on corporate capitalism. The Justice Department brought an antitrust action against the Associated Press (AP) wire service in an effort to expand newspaper diversity. (At the time, normally only one newspaper per city could subscribe to the AP, a real disadvantage for those starting new papers.) The New Dealers were committed civil libertarians, and so these reform proposals stopped short of any effort to regulate the content of the newspapers. But by treating the press as an industry like any other, they nevertheless imagined that some form of state regulation of newspaper economics might be necessary to produce a more diverse and democratic press.

The newspaper industry vigorously opposed these policies. Behind closed doors, they lobbied politicians to ward off regulation. Led by Elisha Hanson, general counsel for the American Newspaper Publishers Association, they argued publicly that New Deal efforts to regulate the press violated the First Amendment and threatened American press freedom. If the New Dealers regulated the economics of the press, Hanson argued in 1943, the people of the “U.S. will be confronted just as the people of Germany today are confronted, with a government-controlled press.”[5] The mostly-forgotten Hanson was thus a central figure in the history of the First Amendment—he pioneered the now-familiar use of civil liberties as a tool to ward off economic regulation.

In the 1930s and 1940s, at a time when Americans were deeply concerned about the rise of totalitarianism, Hanson’s arguments were successful in blunting New Deal press reform. The proposed code of fair trade practices was rewritten to be essentially toothless; the truth-in-advertising measures were radically watered down. While the Justice Department won its antitrust case against the AP, the Supreme Court was so worried about potential interferences with First Amendment rights that it set a narrow precedent for the applicability of antitrust law to the press. And Hanson’s arguments had so convinced liberals of the dangers of state action that there would be very little antitrust action in the press after World War II. When the Justice Department did dust off the AP precedent to try to block the merger of two newspapers in Tucson in the 1960s, the newspaper industry successfully lobbied the Nixon Administration for a formal exemption. Known as the Newspaper Preservation Act, this exemption began the late-twentieth century’s long wave of media deregulation.

In the second half of the twentieth century, therefore, America’s press was free from economic regulation. Economic consolidation continued as highly profitable monopoly newspapers hoarded advertising dollars and used those profits to buy their way into new markets, forming vast newspaper chains. Seeking to fund further expansion in the 1970s, many newspapers were listed on the stock exchange and began to take on debt. But as we now know, these empires were built on shaky foundations. When the media landscape diversified in the 1990s, advertising dollars evaporated. Fixated on maintaining profits, these publicly-listed businesses began to cut costs, particularly by slashing reportorial budgets. When that failed, they went out of business.

We can never know, of course, whether a different regulatory environment would have encouraged the newspaper industry to develop different, more sustainable, economic practices. But thinking about the economic history of the newspaper industry recasts the history of American press freedom. We normally assume that the public and the press share an interest in First Amendment rights and that the press needs to be free from state interference so that it can best inform the public. But once the press consolidated as a powerful industry, it was less clear whether the press and the public had the same interests. New Deal reformers, for instance, thought that the public interest in a diverse newspaper market might require state regulation of the press. But the newspaper industry successfully argued that such state regulation violated press freedom; their economic freedoms were essential to democratic liberty. The result, as A. J. Liebling pithily put it in the 1960s, was that “freedom of the press is guaranteed only to those who own one.”[6]

At roughly the same time that Americans lost interest in reforming the newspaper industry, they confronted a new challenge to press freedom—the rise of state secrecy. The pressures of World War II and the Cold War led to the construction of a vast new apparatus for keeping information secret from the public. In 1951, Harry Truman issued an executive order creating the modern classification system. We do not know exactly how much information has been classified since then—that is part of the point of a secrecy regime—but since the 1950s reviews of the system have routinely noted that it is bloated, classifying far more information than it should. In 2001 philosopher of science Peter Galison estimated that there were some 7.5 billion pages being kept secret, roughly the same number of pages as sit on the shelves of the Library of Congress. Today, between fifty and eighty million documents are classified each year.

In the 1950s and 1960s, in an effort to protect the public’s right to access information about their government, a freedom of information movement composed of journalists tried to roll back the secrecy regime. At first, they argued that the First Amendment right to a free press implied some right to access information. One of their leaders, Kentucky journalist James S. Pope, argued that “the right to speak out and to publish…requires implicitly the right to know.” But soon even Pope was forced to concede that “freedom of information is a will-o’-the-wisp among basic liberties.”[7] The courts have never recognized that the press has a Constitutional right of access to information.

Anti-secrecy activists instead turned to the legislature for relief and eventually succeeded in winning the passage of the Freedom of Information Act (FOIA) of 1966, an amendment to the Administrative Procedures Act. FOIA, which was revised in 1974, provides citizens with a right to receive information from the government and to go to court to enforce that right. But it was an inadequate tool for confronting the modern secrecy regime, as it exempted classified information from disclosure (as well as eight other categories of information, including internal policy deliberations). FOIA, in other words, did not challenge or reform the classification system, but rather deferred to it. Courts have subsequently been highly deferential to state claims that material is exempt from FOIA. That fact, combined with regular delays in processing requests, means that FOIA has not been helpful for journalists working on deadline. Instead, it has been used more successfully by corporations looking to glean information about regulations and contracts, as well as historians. The freedom of information movement did not succeed in its efforts to include the right to access information as one of the rights of a free press.

More broadly, Americans do not believe that the classification system interferes with the rights of a free press. This is because the classification system censors information at the source, leaving the press free to publish classified information it can get its hands on. As the Pentagon Papers decision made clear, the press has a First Amendment right to publish even classified information. But government employees do not have a First Amendment right to leak information. Daniel Ellsberg, for example, was only spared jail time for leaking the Pentagon Papers because the case was thrown out after the Nixon administration formed a small group—the plumbers—and broke into Ellsberg’s psychiatrist’s office. And as Thomas Drake, Chelsea Manning, John Kiriakou, Edward Snowden, and other targets of the “War on Whistleblowers” have learned, leaking national security information carries severe penalties. But because the newspapers that publish their disclosures are free from reprisal, the classification system is seen as compatible with First Amendment guarantees of press freedom.

As a result, the press relies on off-the-record disclosures to provide the public access to classified information. Leaks are habitual in American government, but they provide a poor guarantee of the public’s right to information. The fact that it remains illegal to leak classified information to the press means that government employees are disinclined to leak without at least tacit approval from the administration. A reliance on leaks and insider access creates press dependence on officials and anonymous sources, which undermines the autonomy of journalists to criticize government policy, makes it hard for the public to assess the accuracy and provenance of leaked information, and can lead to government manipulation of the news (think of weapons of mass destruction in the lead-up to the Iraq War). In other words, while the press retains its freedom to publish, the failure to confront the secrecy regime has undermined the public’s ability to access information.

The crises that beset the press today are a direct consequence of this longer history of press freedom. The rise of the internet created more opportunities for Americans to circulate their own opinions while simultaneously undermining the economic system that had paid for the reporting of new information. The result was the creation of a vacuum, into which flooded clickbait, fake news, and endless commentary. Meanwhile, important information about national security affairs only leaks out in partial form. The ongoing Russian investigation provides, in miniature, a parody of the process—the security branches and the president’s team issue statements without evidence; the public is asked only to trust the authority of these various leakers.

When we think only about the freedoms of the press and speech, it is tempting to try to solve these problems by scaling back our commitment to the First Amendment. Why protect the rights of purveyors of fake news? But when we refocus our attention on the problems of public access to information, it is possible to maintain our commitment to First Amendment rights. The real challenge is not to drive bad information out of the polity, to ensure that citizens do not consume false news or bad opinions—a quixotic goal that could only lead to censorship. The challenge is rather to ensure that important information is available to the public. Initiatives for greater transparency would help: rolling back the runaway classification system, providing protections for national security whistleblowers, and reforming FOIA. Dedicated efforts to fund new initiatives in reporting would help as well. Whether that money comes from philanthropists, from discerning subscribers, or (less likely) from public funds, the key is that the money flows to those breaking news about policy, local governance, and social problems—money should not be siphoned off to support hot takes.

Over the course of the twentieth century, Americans provided the press unprecedented freedom to publish what it wanted, but did not build equally robust protections for the public’s right to access information. Today, Americans are once again beginning to realize that freedom of the press alone cannot produce a democratic media. The task now is to protect and revitalize the public’s ability to access high-quality information, what Walter Lippmann once called the “stream of news.”

Author

Sam Lebovic is Assistant Professor of History at George Mason University, where he also directs the history Ph.D. program and serves as Associate Editor of the Journal of Social History. He is the author of Free Speech and Unfree News: The Paradox of Press Freedom in America (2016), which was awarded the 2017 Ellis Hawley Prize by the OAH.

Notes

[1]Walter Lippmann, Liberty and the News (1920; 2008), 33, 37, 41.

[2]Walter Lippmann, The Phantom Public: A Sequel to “Public Opinion” (1927), 155.

[3]Raymond Gram Swing, Forerunners of American Fascism (1935), 134–152.

[4]“Ickes and Gannett Debate Free Press,” New York Times, Jan. 13, 1939, p. 14.

[5]Elisha Hanson, “Says AP Ruling will Lead to Regulation of the Press,” Editor and Publisher, Nov. 13, 1943, p. 8.

[6]A. J. Liebling, The Press (1961; 1975), 8, 32.

[7]“Moss Committee Vital to Public Information,” Editor and Publisher, Jan. 26, 1957, p. 62; James S. Pope, “Freedom is Indivisible,” Nieman Reports, 7 (Jan. 1953), 31.,