When facing common criticism about inaccuracies and unfairness, the Press will often accuse the critic of attacking “a free press”. The folly, in mistaking criticism for an assault on constitutional liberty, is that the First Amendment’s clause — “freedom of speech, or of the press”, has just as much, if not more, to do with the critic’s freedom as the publisher’s.
The First Amendment wasn’t meant to enshrine credentialed journalism as beyond reproach. It was meant to codify the ability of all Americans to act as journalists in their own right.
In the face of criticism, big J journalists deploy this Jefferson quote with ease. “Were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
I couldn’t agree more. But there are two problems with the contemporary usage of that quote. These two problems happen to neatly explain why freedom of the press isn’t about journalism and is about people.
First, in 1789 the concept of 20th century journalism as we know it today didn’t exist. “Newspapers” were not distribution vehicles for contemporary journalism.
Second, in his post Presidency years, Jefferson wrote a litany of letters sharply critical of the Press. The aforementioned quote confirms how he felt about the Press in principle. How he felt in practice tells a different story.
At the time of the founding, our modern interpretation of “reporting” didn’t exist. If those early newspapers did contain what we think of as contemporary news, that “news” was either a months old report from Europe or news of a local town’s doings. In fact, it took a while for the concept to arrive on our shores.
In late 18th century London, newfound access to the debates of Parliament gave birth to the first known acts of reporting. But, according to Mitchell Stephens’ History of News, it was not until the 1820s that reporting came to America. 1822 was the first year a reporter from outside Washington took up covering affairs in the Capitol. And it wasn’t until almost 20 years later that the telegraph gave us “decontextualized news of the day”, as Neil Postman put it.
What did the founders mean by “the press” if not reporting and journalism?
The Continental Congress and Original Colonies were not shy about the role they saw for the press in a new Union of States. In a 1774 address, the Congress stated the freedom of the press promotes “truth, science, morality….[and] whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.”
The Pennsylvania Declaration of Rights stated “The people have a right to freedom of speech, and of writing, and publishing their sentiments, therefore, the freedom of the press ought not to be restrained”. “The people” and “therefore” imply strong sentiment for absolute freedom, as well as no special treatment to publish.
The two seminal cases regarding “press freedom” are perhaps the most important clue in figuring out what it meant back then. These two cases set the tone for the issue in America.
In 1733 John Peter Zenger, printer and publisher of The New York Weekly Journal was arrested and imprisoned for eight months before surviving trial for criticizing the New York Royal Governor. His defense introduced an argument that would be used by future journalists accused of libel - truth. That it is not libelous if it is true. Perhaps more importantly, the defense was adopted by the hearts and minds of American citizens.
69 years later, Harry Croswell — the editor of an explicitly Federalist newspaper The WASP (opposed to the Democratic-Republican paper The Bee), was put on trial for asserting President Jefferson had paid James Callender to call George Washington “a traitor, a robber and a perjurer”. As well as attacking John Adams.
After losing the case, Alexander Hamilton rose to his defense in an appeal heard by the NY Supreme Court. He argued that truth is a defense for libel, and Justice James Kent essentially agreed. The case was lost but the spirit of Kent’s opinion was codified in NY State’s laws, followed by PA, and eventually the soul of the American people.
In practice, the Alien & Sedition Acts of 1798, and the Sedition Act of 1918, jailed political figures for their writings — not the modern interpretation of objective journalists. Does “freedom of speech, or of the press” apply to individual actors? These laws jailed them not for the act of merely speaking but for publishing.
The First Amendment wasn’t designed with 20th century journalism in mind. It didn’t exist! And most of those denied their right to send their words to the press haven’t been card carrying journalists as we now understand them.
Today’s popular interpretation of the First Amendment is a product of political discourse, not history. Reporting is certainly covered, but the precedents, context, and sentiment of the time when 1A was written are byproducts of individual actors and publications — not card carrying members of a press corps.
To the second point. Jefferson well understood the role of a free press in principle, but he also despised them in practice. He understood what is still true today, humans pay attention to news that is grandiose. His entire quote, often reduced to “Nothing can now be believed which is seen in a newspaper” is worth reading:
The argument I make here is analogous. The importance of freedom to publish cannot be understated. With that comes the right to critique what is published.
In order to improve our society from the consequences of this Noble Myth, we must not limit the scope of press freedom, but expand it.
Think about it this way. Anonymity is taking this example to its furthest extreme. Yet some of the most important writing to appear within the pages of a newspaper was written anonymously. The Federalist Papers and the Anti-Federalist Papers, which carried the weight of selling 13 states on banding together, were written under pseudonyms! Ben Franklin was famous for writing anonymously under pen names such as Silence Dogood, Richard Saunders, and Busy Body. How did this era of anonymous, non-journalistic, era of information turn out? I’d say we did alright.
If citizens publishing anonymously is a good thing in practice, then the right of the press in the First Amendment must be understood in practice how it was originally intended — for everyone.
It’s time to apply the same level of press freedom in practice to every American, both in praise and critique.
First published on March 16, 2021