Immersed in the throes of such a polarized time in America, and with the president constantly disparaging the media, it is encouraging, emboldening and essential to remember that the nation’s brightest legal minds have understood the importance of protecting a vibrant free press since the founding of the country.
I was reminded of that after Jon Buchan, the longtime Observer attorney and one of the nation’s best First Amendment lawyers, spoke to our newsroom this month. Based on his suggestion, I went back and read landmark Supreme Court and other court rulings in First Amendment cases.
A common theme emerges: A vigorous free press is more than something to tolerate; it is fundamental to who we are as a nation, and an enabler of our democracy. Tireless questioning of government officials, from Trump on down, should not pit Democrats versus Republicans; it should pit those who want authoritarian rule against the rest of us.
Carefully read and apply to today’s environment these few passages:
▪ Justice William Brennan, in Times v. Sullivan (1964): “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”
▪ Justice Louis Brandeis, in his concurring opinion in Whitney v. California (1927): “Those who won our independence believed … that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that fear breeds repression; that repression breeds hate; that hate menaces stable government…”
▪ Judge Learned Hand, in United States v. Associated Press (1943): The First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection.”
▪ Justice Arthur Goldberg, concurring in Times v. Sullivan (1964): “The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative or judicial capacity must expect that his official acts will be commented upon and criticized.”
Goldberg could have been speaking directly to Trump, who has made opposition to the press a central feature of his administration. He calls the media the enemy of the American people. He labels anything he doesn’t like “fake news.”
In 1798, Congress passed the Sedition Act. It provided a five-year prison sentence for pretty much anyone who published negative things about the president or Congress. Madison and Jefferson were aghast and it was quickly done away with. Is there any doubt Trump would support such a measure?
Many other Americans in this day and age might too. They would do well to read Jefferson and Madison, Brandeis and Brennan. And a more contemporary man named John McCain.
“If you want to preserve democracy as we know it, you have to have a free and many times adversarial press,” McCain said in February. “And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.”