CONSTITUTIONAL CONVERSATIONS

Secretary Blinken Delivers Remarks to the Press in Recognition of World Press Freedom Day at the Foreign Press Center. PHOTO PUBLIC DOMAIN

Freedom of the Press: Indispensable to Democracy

BY DAVID GRAY ADLER

Underappreciated by many and frequently demeaned and denigrated by those seeking and holding political office, the First Amendment guarantee of freedom of the press is, nevertheless, indispensable to our democracy. e founders understood its importance. James Madison referred to press freedom as the “choicest” of the great rights of mankind. Thomas Jefferson, often critical of newspapers who criticized him, wrote in 1786, that “our liberty depends on freedom of the press.” A year later, he addressed the informing function of the press, which he and others understood to constitute the essential rationale for its constitutional protection: “The basis of our governments being the opinion of the people, the very rst object should be to keep that right; and 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.”

The origins and development of freedom of the press in early America had more to do with newspaper practices and citizen desires and expectations than with statutory law, common law, and legal theory. By the time the First Congress proposed the Bill of Rights in 1789, the First Amendment, justly characterized as the bedrock upon which all liberties rest, exalted freedom of the press because it was widely viewed as inextricably linked to popular government. A free people who intended to govern themselves required information about governmental activities, policies, programs, and laws. The electoral process itself would have been a farce if voters were not aided by the press in their quest to learn what candidates stood for and what their records showed about their past performance, credentials, and qualifications for office. The constitutional protection carved out in the First Amendment—“Congress shall make no law abridging freedom of the press”—meant that the press had achieved a special status as an uno cial fourth branch of government. The “Fourth Estate” functioned as a check upon the three branches of government, exposing misdeeds, deceit, and injustices as well as policies and programs that undermined the public interest. e critical watchdog role of the press meant that it had become a “tribune” of the people, as the names of some newspapers—the Chicago Tribune, for example—proudly declared. A tribune sat in judgment of the conduct of public officials because ordinary citizens could not. The American Revolution rejected the English concept of subjects who serve the Crown. Popular government trumpets the principle that government rests on the consent of the people, exists to serve them and, it must be emphasized, is constitutionally limited. A government based on elections requires a citizenry informed by a free press so that it can make intelligent choices. The press, like other professions and the people themselves, may make mistakes, and may occasionally abuse its rights, but free government is impossible without it.

Since the dawn of the Republic, it might be said, freedom of the press was seen as indispensable to a free government that was accountable to the citizenry.

At the time of the founding, freedom of the press encompassed the right to engage in robust, virulent, corrosive, and offensive discussions on the issues of the day.

“Truth,” since the watershed Peter Zenger trial in 1735, had become an accepted defense in vigorous criticisms in attacks on government officials, demonstrating that the straitjacket of seditious libel was unsuited to republicanism. Indeed, the construction of the First Amendment itself was grounded on what was then a novel and democratic theory that the survival of popular governance requires protection for political discourse.

The American Revolution rejected the English concept of subjects who serve the Crown. Popular government trumpets the principle that government rests on the consent of the people, exists to serve them and, it must be emphasized, is constitutionally limited. A government based on elections requires a citizenry informed by a free press so that it can make intelligent choices. The press, like other professions and the people themselves, may make mistakes, and may occasionally abuse its rights, but free government is impossible without it.