the Legacy of Freedom

# The Legacy of Freedom

CHAPTER TWO

The Legacy of Freedom

Americansare sometimes accused of taking freedom for granted.It is easyto talkabouttheFirst Amendment almost as if it were a universal lawofnature,a principle that always existed and always will.

That,ofcourse,isnot the case.The kind offreedomofexpressionthatis permittedtoday in the United States and a few dozen other democracies isunique inworld history.Our freedoms were won through centuries of bitter struggle,and theycould easily be lost.Even today, fewer than half of the world’s peoplelivein countriesthat fully recognize such basic freedoms as freedom ofspeech,freedom ofthe press and freedom of religion.Government leaders in manycountriesconsider “nationalsecurity” (or their own personal security in office)moreimportant thantheirpeople’sfreedoms.Many leaders see the mass media onlyastoolsof propaganda or national development—weapons to be used against their rivals,both foreign and domestic.

EveninAmerica,the threat of terrorism prompted newrestrictionsoncivil libertiesintheaftermath of the events of Sept. 11, 2001.Forexample,theUSA Patriot Act, passed shortly after the Sept. 11 attacks, created a new crime of domestic terrorism, broadened the federal government’s power to monitor telephoneand internetcommunicationsandauthorized the attorney general todetainanyforeignerbelieved to threaten national security, among other things.The law’sname isanacronym for “Uniting and Strengthening America byProvidingAppropriate ToolsRequiredtoInterceptand Obstruct Terrorism.” In2005,Congresswas consideringa number of proposals to extend and amend the Patriot Act,including sometolimitfederal power and others designed to givefederalauthoritieseven broaderpower.AsectionofthePatriotActallowinginternetandtelephone records to be obtained secretly without a normal court order was ruledunconstitutional by a federal judge in 2004 (Doe v. Ashcroft334 F.Supp.2d 471).Thefederal governmentappealedtheDoedecision and AttorneyGeneralAlbertoGonzales urged Congress to retain all major provisions of the Patriot Act.

Inmuchofthe world it is still commonplace forgovernmentstocensorthe massmediadirectly.And even in some countries where the mediaarenominally freeofcensorship,journalists and others whoadvocatedemocraticreformsare sometimesarrested,torturedand murdered.Journalists “disappear” sooftenin somecountriesthatthe outside world hardly notices.Shortofthat,government officialsmaycontrol the media in more subtle ways, such asbyofferinglucrative government “advertising” that looks and sounds just like bona fide news whenitis published or broadcast.Without that government subsidy, many news media would quicklygo broke—a fact that makes it very difficult for them to maintainanysemblance of editorial independence.

Most Americans and Western Europeans were delighted in 1989 and theearly 1990swhencommunist governments all across Eastern Europe werereplacedby non-communistgovernmentsthatimplementeddemocraticreforms,including freedomofthepress.Even the former Soviet Union, longtheprimesymbolof totalitarianismtomanywesterners, entered an era ofglasnostandperestroika—a timeof openness and restructuring that led to free elections and newfreedomfor the mass media, and ultimately to the breakup of the Soviet Union itself.

However, 1989 was also the year when thousands of Chinese students and intellectualswho demonstrated for democracy in Beijing were slaughtered en masseby theChinesearmy,whichwasapparentlyactingonordersofthegovernment.Although China has changed dramatically since 1989 and has become a moreopen societywithabooming economy, democratic reforms havebeenrare,andwhat happenedinChinain1989 was not unique in thecommunistworld.Whilethe transitionfromone-party rule to democracy was remarkably non-violentinmany formercommunist countries, hundreds or perhaps thousands of people whodared to demonstrate for freedom were also massacred in Romania before thatcountry’s hard-line communist government fell.

Itwasnot long ago that those who advocated basic civil libertieswerebrutalizedinmanyother countries that now permit free expressionandfreeelections.Thestoryof how earlier generations won the freedoms we enjoy todayisanimportant part of this summary of mass communications law.

CENSORSHIP IN ENGLAND

Thissummaryofthe evolution of freedom of expressioncouldbegininthe ancientworld,werethis a survey of thephilosophicalunderpinningsofmodern civilization.Powerful arguments for freedom of expression weremadethousands ofyears ago in ancient Greece and several other places around the globe.Butour traditionoffreedom of expression traces its roots most directly toEnglandabout 400 years ago.

In the 1600s, England was caught up in a battle that mixed politics and religion.The monarchy and the government-sponsored Church of England were determined tosilence dissenters, many of them Puritans.Moreover, the religious andpolitical struggle was closely linked with an economic battle between the aristocracy and the rising middle class.

Leaderson both sides of this ideological battle understood theimportanceof theprinting press and sometimes resorted to heavy-handed efforts to censorideas theyconsidereddangerous.In those days more than oneEnglishmanwasjailed, torturedandeventuallyexecutedfor expressingideasunacceptabletothosein power.Brutality that would be shocking to Americans—or Britons—today was fairly commonplace in England in that period.

Officialcensorshipwas enforced through a licensing systemforprintersthat hadbeenintroducedasearlyas 1530.Thelicensingdeniedaccesstoprinting pressestopeople with unacceptable ideas, but it also enabledgovernmentrepresentativestopreview and pre-censor materials beforepublication.Moreover,by making the possession of a license to print a coveted privilege, the governmentwas oftenabletocontrolundergroundprinting.Thelicensedprintersthemselves helped to ferret out bootleg presses to protect their own self-interests.

Milton and the Puritans

By the early 1600s censorship was being used to suppress all sorts of ideasthat threatenedtheestablished order.This inspired some of the leadingpoliticalphilosophersof the day to write eloquent appeals for freedom of expression asavital adjunct to the broader freedom from religious and political oppression they sought.Anearly apostle of freedom of expression was John Milton, who in 1644 wrotehis famous argument against government censorship, Areopagitica.Milton’s appealto the Long Parliament for freedom contained this statement:

Thoughall the winds of doctrine were let loose to play upon theearth,so Truthbeinthefield, we do injuriouslybylicensingandprohibitingto misdoubtherstrength.Let her and Falsehood grapple;whoeverknew Truth put to the worse in a free and open encounter?

Out of this passage several modern ideas emerged, including the concept that a self-rightingprocesswouldoccur through open debate ofcontroversialissues.In effect,Miltonsaidcensorship was unnecessary because trueideaswouldprevail overfalseonesanyway.Milton advocated something ofamarketplaceofideas.Thatwas a revolutionary idea:almost no one in Milton’s time believedthatfreedomofexpression should be universal.But even to Milton, thisfreedomhadits limits.Althoughhe favored far more freedom than mostofhiscontemporaries, Miltondidnotthinkfree expression rights shouldbeextendedtopersonswho advocated ideas that he considered dangerously false or subversive.His appealfor freedomspecificallyexcluded “popery (support for theRomanCatholicChurch) and open superstition” and ideas that were “impious or evil.”

Infact, after the Puritan movement led by Oliver Cromwell gainedcontrolof EnglandandexecutedKingCharlesI in1649,Miltonacceptedagovernment appointmentthatrequired him to act as something of a governmentcensor.One of his duties was to license and oversee the content of an official newssheet, MercuriusPoliticus.By1651—only seven years after he appealedtothegovernmentto allowtrue and false ideas to struggle for popular acceptance—Miltonwasengaged in the prior censorship of ideas.And he was serving in a government thatimposed strict Puritan beliefs on England and showed little tolerance for the beliefs ofother religious groups.

WasMilton’slateremployment inconsistent with thespiritofAreopagitica?Perhapsitwas,buteven today scholars disagree abouttheroleMiltonactually played in Cromwell’s government.Some doubt that Milton really did much censoring.Whatever Milton later did—or did not do—to earn a living, his Areopagitica was aneloquent appeal for freedom of expression and an important influenceonlater English political thought.

Infairnessto Cromwell’s followers, we should also point out thattherewere somewho went further than Milton did in advocating freedom ofexpression.For instanceRogerWilliams,aonetime Puritan ministerintheMassachusettsBay colonywhowas exiled to Rhode Island for his controversialreligiousideas,later returnedtoEnglandand wrote Bloudy Tenent of PersecutionforCauseofConscienceinthesameyearas Milton’sAreopagitica.Williamsurgedfreedomof expressionevenfor Catholics, Jews and Muslims—people Miltonwouldnothave included in his marketplace of ideas.

Perhapseven more emphatic in their arguments for freedom fromcensorship inthe1640s were the Levellers, a radical Puritan group.Theirtractsconsistently contained passages condemning censorship and the licensing system.In theirview, freeexpressionwasessentialto thereligiousfreedomandlimitedgovernment authority they so fervently sought.

Ina1648 petition to the Parliament, the Levellers appealed forafreepress.When “truthwas suppressed” and the people kept ignorant,thisignorance “fitted onlytoserve the unjust ends of tyrants and oppressors.” For agovernmenttobe just “in its constitution” and “equal in its distributions,” it must “hear allvoicesand judgments, which they can never do, but by giving freedom to the press.”

Despitetherhetoric of the Puritans, England restored themonarchyin1660 andthelicensing of printers continued (although Parliament by then hadamuch larger say in the process).Although the post-1660 Restoration period wasmarked by unprecedented freedom—and even bawdiness—in English literature, it was also a timeofreligiousrepression.A 1662 act of Parliament,forinstance,limitedthe numberofprintingpresses and prohibited the printing ofbookscontrarytothe Christian faith as well as seditious or anti-government works.

John Locke and Natural Rights

As the struggle between the monarchy and Parliament became more intense in the late 1600s, new philosophers of free expression emerged.Perhaps chiefamong themwasJohnLocke.His ideas were not necessarily original,buthepresented themsoeloquently that he is remembered as one of themostimportantpolitical theoristsof his time.Locke’s famous social contract theory saidthatgovernments weretheservantsof the people, not the other way around.Lockebelievedmen wereendowed with certain natural rights, among them the right to life, libertyand propertyownership.In effect, Locke said the people make a deal withagovernment,givingit the authority to govern in return for thegovernment’spromiseto safeguard these natural rights.

Centraltothese natural rights, Locke felt, was freedom ofexpression.Thus, whentheEnglishlicensingsystem came up for reviewin1694,Lockelisted18 reasons why the act should be terminated.The act was allowed to expire, primarily becauseof “the practical reason arising from the difficulties ofadministrationand therestraintsontrade.” For a fuller description of thestruggleforfreedomof expressioninEngland,seeFred Siebert’s classic work, FreedomofthePressin England, 1476-1776 (Urbana: University of Illinois Press, 1952).

OtherforcesinEnglish society were also providingimpetusforfreedomof expression.Forone, Parliament gained a major victory over the monarchyinthe Glorious Revolution of 1688.James II, an avowedly Catholic king so offensivethat severalwarringfactionsunited against him, fled the countrythatyear.Thenin 1689Parliamentenacteda Bill of Rights and invited WilliamofOrangeandhis consort Mary, James’ Protestant daughter, to assume the throne with strictlylimitedpowers.In the Declaration of Rights, William and Mary acceptedtheseconditions,endingEngland’s century-long struggle between Parliamentandthemonarchy.

In addition, a two-party system was emerging in England; the times were ready foropen,robustpoliticaldebate.The two parties,theWhigsandTories,both relied extensively on the printing press in taking their views to the people.

Seditious Libel as a Crime

Ifofficial censorship by licensing the press was a thing of the pastasEngland movedintothe 1700s, the crime of seditious libel (i.e., the crime ofcriticizingthe governmentorgovernmentofficials)remained a viabledeterrenttothosewho might publish defamatory tracts.

A good illustration of this problem was the 1704 case of John Tuchin, whowas tried for “writing, composing and publishing a certain false, malicious, seditious and scandalouslibel,entitled,The Observator” (seeRex v. Tuchin,14Howell’sState Trials 1095).

Tuchinwasconvictedofthe crime, and intheprocessthepresidingjudge defined the common law on seditious libel:

To say that corrupt officers are appointed to administer affairs, is certainly areflection on the government.If people would not be calledtoaccount forpossessingthe people with an ill opinion of thegovernment,nogovernmentcan subsist.For it is very necessary for all governmentsthatthe people should have a good opinion of it.And nothing can be worse toany government,than to endeavor to procure animosities, as tothemanagementofit; this has been always looked upon as a crime, andnogovernment can be safe without it be punished.

This common law rule did not go unchallenged for long.Free pressadvocates, perhapsstrengthenedbytheirsuccessinabolishinglicensing,openedthe eighteenthcenturywith a flurry of articles and tracts advocatinggreaterfreedom.Nevertheless,criticismof the government remained a crimethroughoutthecentury,withthetruthfulness of the criticism not a defense againstthecharge.The prevailing legal maxim was, “the greater the truth, the greater the libel.”

Howcould this be?The assumption underlying this philosophywasreminiscentofMilton:if a printer publishes a false attack on the government,itwillbe disregardedby the people;if, on the other hand, a truthful attack is published,the peoplearelikelytolendit credence andperhapsrevolt,causingdisorderand anarchy.

Parliamentitselfrecognizedtheabuses possible underthecommonlawof seditious libel, and in 1792 the Fox Libel Act was passed.That act permitted juries, ratherthan judges, to decide whether a statement was libelous.Prior to thattime, thelawallowedthejury to determine only whether thedefendantwasguiltyof printing the libelous publication.The judge ruled on the legal question ofwhether the material was actually libelous.

This legal reform did not eliminate seditious libel prosecutions, but it did make itmoredifficultforagovernmenttopunishitscriticsbecauseajury,whose members might well sympathize with the defendant’s allegedly libelousstatements, could decide if the statements were libelous.

Anadditionalreform came in 1843, further strengthening therightsofthose whowouldcriticize the government in England.In thatyear,Parliamentpassed LordCampbell’sAct,establishingtruth as a defense inallseditiouslibelcases.Thus,the old maxim, “the greater the truth, the greater the libel,” was atlastabolished.

Whilethestruggle for freedom of expression was being foughtinEngland,a parallel battle was under way in the American colonies.

FREEDOM IN A NEW NATION

Althoughmanyofthe early colonists in North AmericaleftEnglandorthe Europeancontinenttoescapereligious orpoliticaloppression,theyfound(or created) an atmosphere of less than total freedom in some of the colonies here.As thePuritansgainedcontrol in New England, theyestablishedclosechurch-state ties,andpersonswithunpopularreligious orpoliticalideaswerehardlymore welcome here than they had been in England.

Infact,thefirst laws that restricted freedom of thepressinNorthAmerica precededthefirstnewspaper here by some 30 years.Evenwithoutanyspecific authority, colonial rulers often simply assumed they had the right to censordissentingpublicationsbecausetheauthorities had thatrightinEngland.Evenafter licensingwas abolished in England, colonial leaders continued to act as if theyhad licensing powers, and several colonial newspapers carried the phrase “publishedby authority” intheir mastheads years after the right topublishwithoutgovernment permission was won in England.

Moreover,in North America as in England, seditious libelprosecutionswere usedasameansofcontrolling the press, aswerelawsthatplacedspecialtax burdens on newspapers.The Stamp Act of 1765, for instance, taxed newspapersby forcingpublishers to purchase revenue stamps and attach one to everycopy.The resultwassuch blatant defiance of British authority by colonialpublishersthatit helped inspire the eventual revolution against the mother country.

The Zenger Libel Trial

Early in the colonial publishing experience there was a seditious libel casethat becameacausecelebreonbothsides of theAtlantic:thetrialofJohnPeter Zengerin1735(Attorney General v. John Peter Zenger,17Howell’sStateTrials 675).

Zenger,aGerman immigrant, was the publisher and printer of theNewYork WeeklyJournal.His paper became a leading voice for the opposition toaparticularly unpopular royal governor, William Cosby.After some legal maneuvering,the governorwas able to have Zenger jailed and charged with “printing andpublishing a false, scandalous and seditious libel, in which...the governor...is greatly and unjustly scandalized, as a person that has no regard to law nor justice.”

Zengerwas fortunate enough to have Andrew Hamilton ofPhiladelphia,one ofthemost respected lawyers in the colonies, make the trip to NewYorkforhis defense.AndHamilton,ignoring the orders ofCosby’shand-pickedjudge,appealed directly to the jury.He urged the jurors to ignore the maxim of “the greater the truth, the greater the libel” and to decide for themselves whether the statements in question were actually true, finding them libelous only if they were false.

“Nature and the laws of our country have given us a right—and the liberty—both ofexposing and opposing arbitrary power ...by speaking and writing truth,” Hamilton said.

In urging the jurors to ignore the judge’s instructions and acquit Zenger ifthey decided the statements were true, Hamilton was clearly overstepping the bounds of thelaw.Alessprestigious lawyer might have beenpunishedforanactionso clearly in contempt of the court’s authority.However, Hamilton was not cited,and hiseloquent appeal to the jury worked:the jury returned a not-guilty verdicteven thoughtherewaslittle question that Zenger was the publisherofthechallenged statements.

It would be difficult to overstate the importance of the Zenger trial in termsof its psychological impact on royal governors in America.Still, its direct effect on the commonlawwasminimal in America and England itself.Even inthosedays,a criminaltrialverdict established no binding legal precedent.Englishcourtscontinuedtopunish truthful publications that were criticalofgovernmentauthority.For instance, the trial of John Wilkes for publishing a “wicked and seditious libel,” a 1763 English case, made it clear that the common law had not been changed bythe Zenger trial.

Nevertheless, the argument was made again and again that mere wordscritical ofthe government—and especially truthful words—should not be a crime.In1773 the Rev. Philip Furneaux wrote that only overt acts against a government should be punished:

Thetendencyofprinciples, tho’ it be unfavourable, isnotprejudicialto society,till it issues in some overt acts against the public peace andorder; andwhenit does, then the magistrate’s authoritytopunishcommences; thatis,hemay punish the overt acts, but not thetendencywhichisnot actuallyharmful;and therefore his penal laws should bedirectedagainst overt acts only.

THE FIRST AMENDMENT

When a series of incidents strained relations between England and the colonies pastthebreakingpoint, the colonists declared theirindependencein1776.Yet evenin breaking with England, the Americans borrowed heavily fromthemother country.Thomas Jefferson’s ideas and even some of his language intheDeclarationof Independence were borrowed from English politicalphilosophers,notably JohnLocke.Locke’s natural rights and social contract ideas appearrepeatedlyin the declaration.

After independence was won on the battlefield, the new nation brieflyexperimentedwitha weak central government under the Articles ofConfederationand thenbecameaunifiednation under the Constitution, whichwasratifiedbythe statesin1788.Despite its ratification, many Americansfearedthenewfederal government, particularly because the Constitution had no guarantees that basic civil libertieswouldbe respected.Although the defenders oftheConstitutionargued that these civil liberties were firmly entrenched in the common law we hadinherited from England, many were wary.Some states ratified the Constitution onlyafter they received assurances that it would be amended quickly to add a Bill of Rights.

Thatpromise was kept.In the first session of Congress, the Bill of Rightswas drawn up and submitted to the states to ratify.It was declared in force late in 1791.Ofparamountconcerntothe mass media, ofcourse,istheFirstAmendment, which reads: