Two Visions of Freedom of the Press

Freedom of the press and the First Amendment generally were woven throughout the news last week. In the post below I try to outline how these debates – spread out over Twitter, blogs, reports and events – represent two important visions of freedom of the press.

Freedom of the Press When Everyone Has a Press

In a recent blog post Mathew Ingram argues “Freedom of the press applies to everyone — yes, even bloggers.” His post outlines the complex and shifting understanding of freedom of the press as it is being negotiated in the streets and in the courts.

Ingram highlights how acts of journalism, from recording police in public to tweeting updates from protests, are being attacked and undermined, even as courts uphold a more expansive view of freedom of the press. The thrust of Ingram’s post can be summed up in a quote he includes from Judge Kermit Lipez:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders [and] and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

The shifting media landscape has challenged traditional, narrow legal notions of freedom of the press, even calling into question what we mean by “press.” When considered as a narrow legal statute, the idea of freedom of the press is a contested terrain. Given that, it is increasingly important for us to remember that freedom of the press is more than just a law, it’s a core value of our democracy.

This is not a new idea. In 1944 Judge Billings Learned Hand explained the importance of understanding the first amendment in our hearts, not just in our law books. “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts,” he wrote. “These are false hopes; believe me they are false hopes. Liberty lies in the hearts and minds of men and women; when it dies there, no constitution, no law, no court can save it.”

Ingram’s insistence that freedom of the press applies to all people is important because, as Lisa Williams of Placeblogger has argued:

The future of journalism will be a tale of smaller and smaller organizations making a bigger and bigger impact. In the future, you won’t be able to count the number of outlets for journalism, or the number of small, ad-hoc organizations across the globe making it happen. They will form, collaborate, break apart, and come together again in a new configuration that fits the moment.

People around the country, working alone or in small news start-ups, are reclaiming freedom of press and trying to fill the gaps being left by mainstream media. What has often been called the crisis in journalism may indeed be a moment of opportunity to reclaim and enact our core values. After all, if, as Williams suggests, our media will increasingly be the sum of it’s diverse parts, it will be our values that hold us together.

A new report by the Knight Foundation also emphasizes a values based vision of the First Amendment. The report measured young people’s attitudes towards the first amendment. The study found that “there is a clear, positive relationship between student use of social media – such as Twitter, Facebook, Tumblr – to get news and information and greater support for free expression rights.” This finding adds a useful circularity to Ingram’s original assertion. Not only should freedom of the press apply to everyone, but those young people who engage as creators, consumers, and communities online also develop a great respect and appreciation of first amendment rights.

I believe this is in part why, when asked recently what he thought about Twitter, former FCC commissioner Newt Minow responded simply: “The more communication the better.” That was the last question at a forum hosted at Harvard University this week celebrating the 50th anniversary of Minow’s famous “Vast Wasteland” speech.

Freedom of the Press For Those Who Can Pay

While, his concluding remarks provided a good soundbite, it was actually something Minow said in his introductory remarks that most struck me. In the face of all the changes in media and technology, Minow suggested that his key concern is the intersection of media and elections, where he sees a crisis emerging.

As the depth and breadth of TV news has decreased – especially at the local level – communities have fewer and fewer sources of meaningful election coverage. The result is that people now receive the majority of their information about candidates from campaign ads – not from the news. In their recent future of media report the FCC noted that in 2006, “viewers of local news in the Midwest got 2.5 times more information about local elections from paid advertisements than from newscasts.”

Thus, Minow argued, candidates must raise incredible amounts of money from the public so they can buy access to the public airwaves.

And as campaign ads have become huge windfalls for TV broadcasters, there is little market motivation to change this equation. More than two-thirds of all campaign spending in the last election went to TV stations. In 2008, TV commercials ate up at least $2.8 billion in campaign funds nationwide. In the wake of the Citizen’s United decision political advertising broke the $400 million mark in the 2010 election. It is a paradox of our media moment that technology has put a printing press in almost everyone’s hands, but increasingly freedom of speech and the press is only available to those who can pay.

This dynamic between media and elections, is central to understanding the current state of money in politics generally. Robert McChesney and John Nichols call this “the money & media election complex.” They write:

Campaign narratives used to be created by reporters who, imperfectly but seriously, pulled together the multiple threads of an election season to give voters perspective. Now that narrative is driven by commercials—millions of them, most negative… As ads become the primary source of political information, we create a politics based on lies or, at best, decontextualized quarter-truths.

Viewed in this light we have to ask what we mean by freedom of the press. Do we have a free press or do we have, as McChesney said in a speech last week, journalism that is “naked and shivering before the wind of the market?”  My former colleague Ben Scott has written, “The mechanism of market-based regulation in the media system is a poor solution for the protection of First Amendment rights.” Scott’s analysis of negative versus positive conceptions of the First Amendment is useful to consider in terms of both Minow and Ingram’s points.

Matthew Ingram’s piece focused on a vision of the First Amendment that, while important, is situated in a negative framework (i.e. a protection from interference in speech). However, we should also be concerned with our ability to meet the demands of a positive view of the First Amendment (the responsibility to promote what Justice Brennan in New York Times Co. v. Sullivan called an “uninhibited , robust, and wide-open” public debate). Scott argues that “Freedom from” has distracted us from “freedom for”:

Survival of the fittest in oligopoly markets is hardly a recipe for providing a free, fair, and comprehensive public debate. We require here a positive view of the First Amendment which goes beyond simply guard ing the speech rights of any given speaker. Protecting the free speech of the few does not provide it for the many—on the contrary, it may well impede it.

A prohibition on interference does not account for the social, economic, and political conditions in society which structurally impede certain voices while amplifying others. Whereas an active responsibility to provide for free speech would demand that public power remove these obstructing conditions whenever possible.

This is a critical moment, as we re-imagine what the future of journalism could be, to think about what the First Amendment demands of us and our nation. But even as court cases and legal challenges help hone and shape the role of freedom of speech and the press in an era of distributed and participatory media, we should also hold ourselves and our leaders to a higher standard. We should take a step back from the narrow arguments of law and let our values also be a guide.

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