Reclaiming a Progressive First Amendment to Save Journalism

Americans are generally proud of their First Amendment and cherish press freedoms.[1] At the same time, few reflect upon the policies, laws, and institutions that maintain such freedoms. Although media organizations are constitutionally sanctioned, rarely do Americans critically assess whether their government is ensuring public access to key information and communication systems. Instead, they often invoke the First Amendment as grounds for preventing government intervention, even as the market systematically defunds the Fourth Estate at an alarming rate (Pickard, 2019).

While many in the US assume the First Amendment forbids government interventions in our information systems, a rich history of progressive media policy extends back to the dawn of the American republic. Historically, these policy interventions defended positive rights (“freedom for” or “freedom to” as opposed to a libertarian “freedom from”; see Berlin, 1969). From the postal system to the internet, government has helped build out communication infrastructures while guaranteeing public access. With many contemporary news media institutions withering away and becoming increasingly inaccessible—especially for low-income families and communities of color—Americans must recover this history to legitimate government action.

An Alternative History of the First Amendment

The founders of the American Republic generally shared Thomas Jefferson’s view that self-governance is predicated on society having access to reliable information, which in turn required a vibrant news media system. James Madison famously said, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both…” (emphasis added, Madison, 1987). Both Jefferson and Madison emphasized the necessary condition of ensuring access to information. Understood in this way, the press provides an essential infrastructure for democratic society, and it is the government’s responsibility to provide it (Pickard, 2019).

These assumptions are enshrined in the Constitution, which ensures inalienable protections to news institutions, the only industry to receive such treatment. The First Amendment states, “Congress shall make no law… abridging the freedom of speech, or of the press…” Legal theorists and historians have long debated the intended meaning of the “or of the press” clause, which seems to distinguish it from “freedom of speech.”  The leading First Amendment scholar, Steven Shiffrin, notes that despite Supreme Court decisions to the contrary, existing jurisprudence and case law suggests that the press clause confers special privileges on the press. Shiffrin argues that “the New York Times is not a fertilizer factory,” and it should not be treated like an ordinary business (Shiffrin, 2016, 126-127). Moreover, some historical analyses suggest that the First Amendment authors saw the press as an autonomous institution whose need for special protections exceeded individual speech freedoms (Clark, 2005).

This interpretation underscores the need for institutional support of the press, as well as the importance of public access to it. Key figures of the early American Republic, including Benjamin Franklin, suggested that individuals should have a positive right to express themselves in the press, that viewpoint diversity and equality in the press was important, and that newspapers were communal goods, not simply private property (Cook, 2005, 8). This position represents what the historian Robert Martin (2001) refers to as the “open press doctrine,” which extended well beyond simply preventing state interference in news media to consider the press’s obligations to society such as providing diverse sources of information. When the founders drafted the First Amendment, Martin observes, such normative ideals were as much “in the air” as were libertarian concerns about governmental overreach.

The belief that Americans must have access to reliable and diverse information—and that the government had an affirmative duty to help provide it—justified massive state investments in the country’s first major communications network: the postal system. In its early days, this system served primarily as a news-delivery infrastructure, with as much as 70 percent of mail delivered in the 1790s and 95 percent in the 1830s consisting of newspapers (John, 1995, p. 38). In the first major American media policy debate, the founders of the US government argued decisively that the postal system should not have to pay for itself—a rejection of what the historian Richard John terms a “fiscal rationale” (pp. 47-48). Instead, they privileged the postal system’s educational purpose over economic considerations, and heavily subsidized it (p. 30). Such a commitment required a particular normative vision of a media system’s vital role within a democratic society—as well as a vision for why positive liberties require affirmative protections from the state.

Despite a significant amount of writing on the importance of positive liberties for democracy (see, for example, Meiklejohn, 1948; Barron, 1967; Kenyon, 2014), such thinking has only rarely ascended within mainstream US law and policy discourses. Legal theorists typically have framed American normative discourse in negative terms, exemplified by an absolutist understanding of the US First Amendment. However, a lesser-known tradition that draws on positive rights also exists. This tradition can potentially revitalize the American regulatory imagination and reorient policy agendas toward confronting media-related challenges such as the ongoing journalism crisis as well as problems related to internet access (Pickard, 2016).

One major articulation of positive freedoms is exemplified by the Supreme Court’s 1945 Associated Press (AP) case, where the AP tried to argue for antitrust exemptions based on its First Amendment rights. The Supreme Court dismissed this argument, stating that the First Amendment “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public…” The court made the key point that government had an affirmative duty to protect press freedoms:  “It would be strange indeed…if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom.” Another high-water mark of this positive-rights discourse was the Supreme Court’s 1969 Red Lion decision upholding the Fairness Doctrine, which determined, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Such progressive interpretations of the First Amendment sanctify positive freedoms and mandate that the state should protect them. This vision serves as a stark counter-narrative to a First Amendment that is captured by commercial interests who use it to shield themselves from regulatory oversight (Pickard, 2015).

Flipping the First Amendment

The historical tradition sketched above suggests that reformers are on solid ground to advocate for a more progressive, expansive, and positive First Amendment. Indeed, the entire premise of press freedoms under the First Amendment presupposes a functioning press system. In other words, the very existence of the First Amendment necessitates the government’s affirmative duty to guarantee a press system. Despite this foundational freedom—as Jerome Barron (1967) noted long ago—there has been a longstanding blind spot in our constitutional law for creating opportunities for expression. Although privacy rights and freedom of expression are founded on negative liberties that shield us from state tyranny, a progressive agenda must also include a strong case against other sources of tyranny (such as concentrated corporate power) while legitimating government intervention to create greater capabilities to communicate and to access information. In other words, the mere absence of state interference does not sufficiently guarantee a democratic media system. If we are to confront threats to democracy such as digital divides, unaccountable media monopolies, and growing “news deserts,” we must recalibrate the First Amendment to become a progressive force in society.

About the author: Victor Pickard is an associate professor at the University of Pennsylvania’s Annenberg School for Communication where he co-directs the Media, Inequality & Change (MIC) Center. He has authored or edited six books, including America’s Battle for Media Democracy and the forthcoming Democracy Without Journalism?

References

Associated Press v. United States (1945) 326 US 1.

Barron, Jerome (1967). “Access to the Press – A New First Amendment Right,” Harvard Law Review 80(8):1641-1678.

Berlin, Isaiah (1969). “Two Concepts of Liberty” in Four Essays on Liberty. Oxford: Oxford University Press.

Clark, Charles (2005). “The Press the Founders Knew,” in ed. Timothy Cook, Freeing the Presses: The First Amendment in Action (pp. 33-50). Baton Rouge: Louisiana State University Press.

Cook, Timothy (2005). Freeing the Presses: The First Amendment in Action. Baton Rouge: Louisiana State University Press.

 John, Richard (1995). Spreading the News: The American Postal System from Franklin to Morse. Cambridge: Harvard University Press.

 Kenyon, Andrew (2014). “Assuming Free Speech,” The Modern Law Review 77(3):379-408.

Meiklejohn, Alexander (1948). Free Speech and Its Relation to Self-Government. New York: Harper Brothers.

Madison, James (1987). “James Madison to W.T. Barry,” in eds. Philip Kurland and Ralph Lerner, The Founders’ Constitution, vol. 1 (pp. 103–9). Chicago: University of Chicago Press.

Martin, Robert (2001).  The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800. New York: NYU Press.

Pickard, Victor (2015). America’s Battle for Media Democracy: The Triumph of Corporate Libertarianism and the Future of Media Reform. Cambridge University Press, 2015.

Pickard, Victor (2016). Toward a People’s Internet: The Fight for Positive Freedoms in an Age of Corporate Libertarianism, NORDICOM, 61-68.

Pickard, Victor (2019). Democracy Without Journalism? New York: Oxford University Press.

Red Lion Broadcasting Co v Federal Communications Commission (1969). 395 US 367.

Shiffrin, Steven (2016). What’s Wrong with the First Amendment? New York: Cambridge University Press.

[1] Parts of this essay draw from previous and forthcoming writings, including Pickard, 2015, 2016, 2019.