No Law* to Regulatory Regime: The Press in Transition

*Extracted from: “Congress shall make no law… abridging the freedom of speech, or of the press…”

Freedom of expression, whether on the traditional press and broadcasting media, or through the new electronic media, remains of fundamental importance to the workings of the liberal democracies; indeed, it is impossible to see how a democracy could exist without a free, pluralist media for the dissemination of information and the discussion of political and social affairs.[1] But the free press does not entail the complete absence of law and regulations. Laws are needed to balance the competing interests of the media and the public.

To a large extent, the media exercises self-restraint as there exists questions of legitimate public concern. The silence of US media about John F. Kennedy’s sexual affairs, both while he was a candidate for the Presidency and later while he occupied that office, and of the English newspaper’s silence about Churchill’s health during the Second World War is often quoted when we debate about the maturity of media. But today, the situation is very different. Revelations about the private life of celebrities and public figure, and the increasing misuse of freedom has raised question as to how much free is, free media? The citizens in many advanced liberal democracies guaranteeing Free Press has started questioning: Are the newspapers and the channels immune? Can media activism endanger reputation, privacy, or even safety of individuals? To what extent is this freedom unfettered as to endanger the dignity of those individual, whom they inform and entertain? Or putting it straight- Do freedom of press necessarily implies freedom of newspapers and electronic channels?

Freedom of Press: US experiences

“Congress shall make no law… abridging the freedom of speech, or of the press…” These sparse words of the First Amendment of the United States Constitution have created a huge literature, a complicated jurisprudence, and a plethora of case laws which marked its get-go in Schenck v. United States[2], where the U.S. Supreme Court went on to decide the constitutional validity of legislation on the basis of the Amendment. To gather the legislative intention behind the amendment, reference is seldom made to the pages of history as there is a paucity of proof but it is undisputed that the Founders affirmed to the Blackstonian position i.e. against the prior censorship of the press.[3] In Konigsberg v. State Bar of California[4], Justice Hugo Black saw the Founder’s intention embedded in the clause and goes on to declared that these words are “the First Amendment’s unequivocal command”, which “shows…all the balancing that was to be done in this field”, insisting “No law” means no law.

In the context of non-constitutional social interest viz. privacy, reputation, repose or public morality, often the debate of ‘Balancing’ vis-à-vis ‘Absolutism’ is marked. The absolutists’ claim being ‘No law’ signifies ‘impermissibility’, never allowed general theorizing. However, the judicial responses in its ad-hoc balancing often given these social interests prevailing effect over the countervailing claims to freedom of speech. The non-acceptability of Black’s view is the evidence of it and the reason being it invalidates many widely accepted restrictions on speech and restrictions that reflect the complexity of the relationship between individual liberty and the interests of the community.

The reason of overweighing a principle while interpreting is never unguided. Similarly, the Supreme Court, while interpreting the First Amendment, had looked forward to the broad purposes of its language in the light of various theories, arguments advanced in justification of the speech and press clause, and the political history and intellectual tradition. These justifications include self-government, individual self-fulfillment, and the attainment of truth. In Times Inc., v. Hill[5], discussing self-government argument observes that a representative democracy is impossible without the active participation of citizenry. Scholars like Blasi[6] believe that the function of free speech and press is to arrest the inherent tendency of government officials to abuse the power while others like Bollinger[7] take it as a safety valve for the release of energy that might be directed towards subversion or violence. The argument from self-realization regards speech as cardinal to human development in Whitney v. California[8]. Lastly as observed by the Court in Red Lion case[9], truth is most likely to emerge only when confronted by its refutation in an arena of free and open debate.

Unlike many of the Constitutions of other democracies, the U.S. Constitution fails to specify what the limits of the freedom, hence leaving the Supreme Court to its own devices when confronted with constitutional challenges to rules or regulations that infringe upon the freedom of speech or press.[10]

Transition: Protectionist Approach to Free Speech

In the case of Brandenburg v. Ohio[11], Brandenburg, a Ku Klux Klan leader was convicted under the Ohio’s criminal syndicalism statute for remarks that he had been taped making at a Klan rally where he had used racially derogatory terms. Ohio’s intermediate court of appeals and the state supreme court dismissed Brandenburg’s appeal. Justice Black and Justice Douglas claiming that the court should abandon the “clear and present danger test” decided that Ohio’s criminal syndicalism law violates freedom of speech as guaranteed by the First and Fourteenth Amendments.

However the broad protection accorded to the political speech in Brandenburg case was foreshadowed by the historic decision in New York Times Co. v. Sullivan[12]. Prior to Sullivan, public officials could sue newspapers and other critics under state libel laws for defamatory utterances and false statements of fact directed towards their official conduct. In overturning such protection, the Court announced that in the future the public officials could recover damages for a falsehood relating to their official conduct only if they could show that the utterances were made “with reckless disregard of the truth”. Thus J. Brennan gave priority to free speech with a very restrictive exception ranking speech superior to the social values of personal honour and reputation. The court pointed out that “erroneous statement is inevitable in free debate” and freedom of expression needs “breathing space” to survive and any other rule would lead to “self-censorship of the press”, deter would-be critics of official conduct, and dampen the vigor of public debate. The court while delivering this judgment cited J.S.Mill approving that even false statements contribute to public debate because then truth emerges vigorously and clearly “by its collision with truth”.[13] Sullivan case invited criticism for its elevation of speech over the countervailing values. However the criticism intensified when the court in Curtis Publishing Co. v. Butts and Associated Press v. Walker[14], Time, Inc. v. Hill[15], and Time, Inc. v. Firestone[16] extended the Sullivan privilege to cover public figures such as football coaches, celebrities and others. J. Brennan was not unmindful of the important social values[17] still in Rosenbloom v. Metromedia[18], he argued that free speech “must embrace all issues about which information is needed… to enable the members of society to cope with the exigencies of their period”.   

Reversal to Dignitarian Argument

In Gertz v. Robert Wetch, Inc.[19], the court limited a newspaper’s constitutional privilege against liability for a false statement of fact. The court shifted its emphasis to J. Stewart approach i.e. the dignitarian argument where the injury is inflicted on a private person caught up in a matter of public interest. J. Powell went on to say “there is no constitutional value in false statement or fact” as “neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust and wide-open’ debate on public issues”[20], though J. Brennan dissented.

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[1] Barendt, Eric., et al(editors), Series Preface, Freedom of the Press, Library of Essays in Media Law, Ashgate Publishing Limited, England, 2009.

[2] 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919).

[3] Levy, Leonard W., Legacy of Suppression: Freedom of Speech and Press in Early American History, Cambridge, Mass., Belknap Press of Harvard University Press, 1960, p. 13-15 and 214-48.

[4] 366 U.S. 36, 61 (1961)

[5] 385 U.S. 374 (1967).

[6] Blasi, Vincent, The Checking Value in First Amendment Theory, American Bar Foundation Research Journal, 1977, p. 538.

[7] Bollinger, L.C., The Tolerant Society, Oxford University Press, New York, 1986

[8] 274 U.S. 357 (1927).

[9] Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969).

[10] Kommers, Donald P., American Constitutional Law, 3^rd edn., Rowman & Littlefield Publishers, Inc., USA, 2010, p. 739

[11] 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969)

[12] 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686 (1964)

[13] Mill, J.S., “On Liberty” in John Garvey, The First Amendment: A Reader, St. Paul, Minn.: West Publishing Co., 1992, p. 59.

[14] 388 U.S. 130 (1967)

[15] 385 U.S. 374 (1967)

[16] 424 U.S. 448 (1976)

[17] Rosenblatt v Baer, 383 U.S. 75, 86 (1965)

[18] 403 U.S. 29, 41 (1971)

[19] 418 U.S. 323 (1974)

[20] Id. 340