How Civil Rights and Pro-Peace Demonstrations Transformed the Press Clause Through Surrogacy
August 24, 2008
William Mitchell Law Review, Vol. 34, No. 1021, 2008
This article explores the evolution of press rights in the United States by highlighting the context in which the Supreme Court gave its most expansive interpretations of the Press Clause. This expansion, similar to all clear articulations of freedom and liberty, is founded upon the need that arises in every generation to oppose abuse of governmental authority. The late Justice Douglas warned that:
One of the earmarks of the totalitarian understanding of society is that it seeks to make all sub-communities - family, school, business, press, church - completely subject to control by the State... [Communities] are, in principle, reduced to organs and agencies of the State. In a democratic political order, this megatherian concept is expressly rejected as out of accord with the democratic understanding of social good, and with the actual make-up of the human community.
This article conceptualizes the Press Clause as part of the social contract designed to reproduce that important information which inherently belongs to the public, now popularly characterized as the "right to know." The public right to know refers to acquisition of information on the inner workings of government and industry, particularly with respect to transactions between the two. In its production and delivery of the news, the press performs the role of a typical gestational surrogate. The concepti (right to know relevant information) belongs to the people; the press carries out the delivery without any viable claim to the fruit of that labor. Adequate understanding and enforcement of rules governing a free press insures government of, by, and for the people. Protection for a press that fails to promote civic engagement raises significant questions of efficacy and accountability as well as undermines general efforts to achieve substantive justice. As one news editor stated in addressing a group of journalists concerning the balance between the First Amendment's commitment to a free press and the self-imposed regulations that keep it free:
We return to the articles of democracy to give us a place at the table... Which means not just freedom but the robust life in a democratic state... I can imagine a fat and prosperous press without the freedoms of contradiction and accuracy. It would not be a free press, just a profitable one. Its people might think themselves free, yet would not be.
Part two provides an overview of the First Amendment by examining the history of the Press Clause and its evolution during the colonial period. It summarizes the theory and rhetoric around liberty of conscience and the normative legal ordering that sustains free speech, press, assembly, petition, academic prerogatives, and association. It concludes by exposing the inherent flaws of rationalizing speech rights based upon categorical commitments to discovering the truth, and noting the impact of market-based limits on access to national media, the use of labels to stifle dissent, and the influence of corporate entities in shaping public debate.
Part three illustrates that the Supreme Court's modern articulation of the right to associational freedom and fortification of the Press Clause relate directly to student protests against United States' apartheid and the mob violence that epitomized the Jim Crow era. Historic links to the Civil Rights and Pro-Peace Movements of the 1960s and 1970s solidified a number of legal reforms that some mistakenly perceive as immutable, original, and normative features of rights guaranteed by the First Amendment.
Part four notes the context in which the staunchest period of protection for the press began and outlines the phenomenal change in the national press corp's understanding of its mission and significance in this nation. Part five conducts an analysis of modern aspects of mass media, with a focus on how the freedom granted during that historic period of expansion is being utilized today.
In the United States, we operate under a system that guarantees heightened deference to individual and institutional advocates, despite irreconcilable differences in their nature and origins, as well as enormous inequities in their capital resources and overall means of influence. Thus, the long-term implications for maintaining a free press under corporate domination, in light of evolving technologies that impact public media generally, is ripe for constitutional analysis.
Keywords: free press
Date posted: August 27, 2008
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