What is the Free Press?
It was early June—a mere 13 years after the United States had become a country—when Founding Father James Madison penned words which would continue to ripple through society centuries into the future: the Bill of Rights.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" First Amendment, United States Constitution
Of the 10 amendments which make up the Bill of Rights, the First Amendment tends to be the easiest to recall for most Americans; however, its tenets may not be as familiar as expected. According to the Freedom Forum Institute’s 2018 State of the First Amendment report, only 36 percent of survey respondents could name one of the five freedoms guaranteed by the First Amendment, and not a single participant could name all of them.
Survey participants recalled freedoms from other amendments in the Bill of Rights more often than they recalled the freedom of the press—and that could be a problem for U.S. democracy.
Lata Nott, the executive director of the First Amendment Center at the Freedom Forum Institute in Washington, D.C, believes it is significant the press is the only profession explicitly mentioned and protected by the U.S. Constitution.
“When you control information, you control what the public thinks,” Nott said. “It’s the first step to having any kind of totalitarian control and something we should keep a watch on here.”
Jeff Sonderman, deputy executive director of the American Press Institute, thinks the Founding Fathers recognized the importance of the free press.
“The people who wrote our founding documents understood the role of the press in this democracy is to oversee the people who hold power and help citizens make informed political decisions,” Sonderman said.
Thomas Jefferson expressed his belief in the free press’ vital role to maintaining democracy in a letter to fellow lawmaker Edward Carrington in 1787.
“The people are the only censors of their governors,” Jefferson said. “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 democratic function of the free press may not come immediately to mind, but it is the reason it was created. It ensures people know what their government is doing, and the government knows it will be held accountable for its actions. The free press’ responsibility to investigate and report on government affairs—both good and bad—has led to it being known as a watchdog.
In the Freedom Forum Institute’s survey, 74 percent of respondents agreed it is important for democracy that the news media act as a watchdog on government, a six percent increase from the 2017 report.
However, Sonderman thinks some of the belief in the press’ watchdog role may be tied to the people and political party in power.
“On the day Trump was inaugurated, the number of Republicans who believed the watchdog role was a valued thing dropped precipitously,” Sonderman said. “In 2016, when Barack Obama was president, Republicans felt very strongly the press should be a watchdog and the government should be held accountable.”
According to Sonderman, journalists tend to think it is their job to exercise scrutiny equally to check on power regardless of how the government is using it.
“We do, as journalists, probably have an obligation to speak up about why we watch the government and what we hope to accomplish by doing that,” he said.
What are the Limits?
As the old idiom goes, give someone an inch and they’ll take a mile. Such is the danger with rights and freedoms. What are their boundaries? It’s a question that is both important and complicated—especially when it comes to the government and its watchdog.
“There’s always a tension between national security and what the press can do,” Nott said. “The standard is you can’t stop the press from publishing something unless you can establish it would cause immediate and irreparable harm to the United States.”
This standard was established in the landmark U.S. Supreme Court case, New York Times Co. v. United States. More famously known as the “Pentagon Papers” case, it arose when the Nixon administration attempted to prevent two newspapers—The New York Times and Washington Post—from publishing content from a classified Defense Department study regarding the history of the Vietnam War. The documents revealed administrations from Harry S. Truman’s through Lyndon B. Johnson’s had willingly deceived the American people about the nation’s involvement in Vietnam. Daniel Ellsberg, the military analyst responsible for releasing the information, leaked the papers to stop what he perceived to be a wrongful war.
“The public would not, at that time, have supported a continuation of the war, let alone an expansion of the war, but [Nixon] was successfully fooling the public, who didn’t want to believe that any president could be so foolish and so narrow-minded in his own interests as to keep that war going,” Ellsberg said in an interview conducted by UC Berkeley.
After The New York Times published its third installment of the Pentagon Papers, the U.S. Department of Justice announced it would investigate criminal penalties in association with the leak and publication of the classified information. Thus began, New York Times Co. v. United States.
“When the Supreme Court weighed in on this, a lot of the justices agreed the release of the documents would be incredibly damaging to America,” Nott said. “But they thought this idea of prior restraint—of stopping somebody from publishing something—was even more dangerous to the country.”
Justice Black asserted only a free and unrestrained press can effectively expose deception in government in his concurring opinion.
“Far from deserving condemnation for their courageous reporting, The New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly,” Black wrote. “In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
Nonetheless, not every case is like the Pentagon Papers and there have been times when the press has published information at the expense of greater national interests.
Eric Jensen, a BYU law professor who served as Special Counsel to the Department of Defense General Counsel, recalled an instance when the government was tapping into terrorists’ phones. This included people who were directly with Osama bin Laden. They were gathering important information such as geolocation until one government official mentioned something to the press and it was published.
“Of course, terrorists read the news and they took steps to try and remove our advantage,” Jensen said. “That to me seems like a time when, if I was a government official and a member of the press asked me if I was tapping terrorist phones, I would say no. That is information the government should protect.”
Aside from publishing information which frustrates operations of national security, another potential danger of the press is misrepresentation.
“Sometimes the press misrepresents intentionally, but other times it is just due to lack of information,” Jensen said.
He recounted an experience while he was in Iraq sitting in the command and control center during a battle with Muqtada al-Sadr.
“We had big screens in the command and control centers,” Jensen said. “We had news coverage on one and the live feed of the battle from drones on the other showing us exactly what was happening.”
Knowing he had good situational awareness, Jensen found it interesting to compare what he was personally observing during the battle to the news coverage.
“I was watching what the press was reporting, and they could have been on two completely different continents they were so far off,” Jensen said. “The press tries to do their best, but they don’t know when they don’t have sufficient information.”
According to Jensen, the 24-hour news cycle can also play a role in misreporting.
“In the thirst for at-the-minute news, reporters can’t wait until the battle ends and the military press representative explains what happened,” Jensen said. “I don’t think it’s malicious, but that thirst for information is such where as soon as the press gets information they might not have a way to verify it so they just publish it.”
"Freedom of the press is not just important to democracy, it is democracy" Walter Cronkite, Broadcast Journalist
Despite this, Jensen believes the press is the main contributor to transparent government and healthy democracy. He thinks reporters are often very careful about publishing information if it is going to put someone or the nation at risk.
“My experience has been when reporters recognize they are publishing sensitive material, they will usually go to the government in advance and ask if they would like to comment on it—essentially giving them a chance to tell them not to publish,” Jensen said. “Now, if they think it’s because the government is trying to cover up something or avoid embarrassment they will publish as they should.”
According to Jensen, there are times when transparency or, at least, immediate transparency might not be possible. Considering the inherent tension between national security and the role of the press, he believes one of the key ways to demand government transparency is having the president divulge information to congress.
“Congress represents the people,” Jensen said. “They may not be able to share everything, but they will know what’s going on and act as a break on executive overreach.”
Cases that have influenced the Free Press
The Free Press in Modern America
According to the Pew Research Center, Republicans and Democrats are now further apart ideologically than at any point in more than two decades. A recent study revealed only one third of Americans hold a mix of conservative and liberal positions whereas, in 2004, nearly half of the country had mixed political values.
Evan McMullin, a former CIA operations officer who ran as an Independent during the 2016 United States presidential election, believes the polarization of the two parties collectively results in the failure of political leaders in Washington to address modern challenges.
“Political gridlock has now moved into a new phase of dysfunction—a space of chaos and even violence,” McMullin said in October 2018 to a group of students at Brigham Young University. “I think this conversation is particularly relevant now, and recent events really underscore the importance of addressing this issue of political polarization and resulting gridlock and dysfunction.”
Patrick Murphy, a Democrat who served as the U.S Representative from Florida’s 18th congressional district from 2013 to 2017, suggests the media plays a huge role in how the government can function.
“The truth is, the more outspoken you are the more you’re going to be on Fox or the more you’re going to be on CNBC, and the more you’re on TV the more money you can raise and the more exposure you have,” Murphy said. “What’s that old saying in the press? They don’t report the plane that lands on time, and all these things work together to create people and figures that often times aren’t who you think they are.”
David Jolly, an Independent politician and former Republican who served as the U.S. Representative for Florida’s 13th congressional district from 2014 to 2017, believes members of Congress may come in with the best intentions, but will start to justify actions based on the belief they need to be in power longer to make a difference—that means fundraising and being re-elected.
“It’s gotten worse now with more and more people putting their party above the country and this sort of tribalism that we’ve seen start to play out,” Jolly said.
Seth Berlin, a partner at Ballard Spahr LLP, believes America is seeing a breakdown of the model of the First Amendment and the marketplace of ideas that defines it. He believes Americans’ tendency to be exposed only to news content that echoes their beliefs and both domestic and foreign interference have played significant roles in polluting the First Amendment model.
“We all operate in silos; we get our news on Facebook based on algorithms that determine what it thinks we want to look at as opposed to some breadth of ideology,” he said. “Furthermore, there are efforts by foreign governments and domestic organizations to publish knowingly false information.”
Sonderman believes the messy world of information, particularly with digital and social media, makes it difficult for the average news consumer to make sense of everything.
“There are all these other wrinkles to sort out when determining what to believe and how to compare information,” Sonderman said. “Most schools at whatever level are not teaching how to use media or be a critical news consumer.”
According to Sonderman, media literacy—the practices that allow people to access, critically evaluate and create media—is key to understanding the current media and political climate. He would like to see news organizations go out of their way to help educate the public as they consume their media—a concept he refers to as media fluency.
"Media literacy is not just important, it’s absolutely critical. It’s going to make the difference between whether kids are a tool of the mass media or whether the mass media is a tool for kids to use" Linda Ellerbee, Journalist
“The idea of organic news fluency is that you shouldn’t have to go take a course on news literacy to understand the media,” Sonderman said. “Just by consuming news regularly you should be able to pick up things and, right now, that’s not necessarily the case.”
Sonderman believes if news organizations are more transparent about the journalistic profession, how stories are created, where their money comes from and where information and sources come from, the public will have more natural instincts to identify news and news sources that are fake, biased or unreliable.
Sonderman often uses the analogy of nutrition labels on food packaging.
“Because nutrition labels are required by law when you buy food at the store, you assume there is transparency with its contents and quality,” Sonderman said. “If you come across something without the nutrition label, you question it and you can kind of have that effect in news if you start to have labels on the news you read. If that’s the case, when you come across news that isn’t trustworthy, it’s easier to spot.”
Sonderman believes it isn’t enough for journalists to tell the public they are trying to make sure the government is working for them.
“There are ways journalists could handle media literacy better than assuming the public will just get it because it’s supposedly clear—there are a lot of people who don’t just get it,” Sonderman said.
Protecting the Free Press
During a meeting with President Donald Trump, Lesley Stahl, a veteran journalist of the CBS program “60 Minutes,” asked him why he attacked the press.
“You know why I do it?” he responded. “I do it to discredit you all and demean you all so that when you write negative stories about me no one will believe you.'”
“Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same..." Ronald Reagan, "Encroaching Control" (1961)
Sonderman believes it is important for Americans to reflect on and renew their commitment to their constitutional rights.
“If people think the press is free because some document says it is, that becomes pretty easy to decide to overturn or take away later on,” he said. “We won’t fight as hard as we should for our rights if they are not grounded in deeper beliefs and shared values.”