Today is Law Day — an annual celebration of the rule of law, as declared by President Dwight D. Eisenhower in 1959. Each year, the American Bar Association selects a theme for the Law Day and this year’s theme is a particularly topical legal issue, and one near and dear to my heart: “Free Speech, Free Press, and Free Society.”
The First Amendment to the U.S. Constitution specifically prohibits government for “abridg[ing] the freedom . . . of the press.” Because the press has traditionally been understood to refer to a collective enterprise, this does not appear to be an individual liberty. Reporting the news, back in Benjamin’s Franklin’s day as now, requires organized teams of reporters, editors, photographers, etc. It takes more than one man or woman to be “the press.”
But the First Amendment recognizes the right of individuals to coordinate with others (“to peaceably assemble”) and to express their views (through “the freedom of speech” and “the free exercise of religion”). So, why, then, did the founders feel the need to also say “or of the Press?”
The answer is particularly appropriate to consider at this fascinating moment in our nation’s history. The rights protected by the First Amendment are in pursuit of our individual liberty to “think for ourselves,” free from any government-imposed orthodoxy (religious or otherwise) and thereby to decide our own fates. The Founders recognized that for each of us meaningfully to exercise that freedom, we must be able to hear a diversity of voices and be exposed to alternative perspectives on the day’s events. And, especially, to have access to well-grounded debunking of “the official story” promulgated by government leaders. Put simply, the reason the Constitution protects “the press,” expressly, is to ensure that through informed decision-making we can govern ourselves.
This message is vital today — May 1, 2019 — because we are living at a time when two forces are simultaneously challenging the vital role the “free press” plays in our democracy. The first threat arises from the interplay of technology and economics.
A “free press” refers to freedom from government interference, not that the information it imparts should be available at no cost. Franklin charged for his newspaper. But the last few generations of Americans have grown up in a world where information is available 24/7 on television, radio, and especially the internet, and (with few exceptions), at no cost. This technology has “disrupted,” indeed destroyed, the advertising-based business model for daily print newspapers.
Newsroom staffs, previously funded by display ads and robust subscriber bases, have been decimated. There were 31,000 fewer journalists employed at America’s newspapers in 2017 than there were 10 years earlier — a 45% decline. Not long ago, Colorado had two statewide daily newspapers, staffed by some 450 newsroom employees. Those of us who remember those days know how the amount and depth of information available to us today pales in comparison; how could it be otherwise when there are fewer newsroom employees at newspapers?
This existential crisis for newspapers threatens the existence of an informed citizenry that is the foundation for a functioning democracy.
Locally, several online news outlets — The Colorado Sun, The Colorado Independent, Denverite (now a part of Colorado Public Radio), and others — seek to supplement the print newspapers and “fill the gap.” The Gates Foundation is underwriting The Colorado Media Project, a consortium of academics, journalists, and community members devoted to preserving the ecosystem for local news in Colorado. These organizations, and your local newspaper (including this one) deserve your support — yes, actual dollars — to help ensure that We The People can effectively govern ourselves and hold our public servants accountable.
The second major gale wind attacking a functioning “free press” is the concerted, deliberate, and systematic campaign by those who hold power to undermine the public’s trust in journalists and “the media” (used as a perjorative term) more generally. The president uses terms like “fake news,” “the lying press,” “corrupt mainstream media” and “enemy of the people” to describe The New York Times, The Washington Post, CNN. These are not fringe groups or political partisans — they subscribe to, and try strenuously to adhere to, journalistic codes of ethics that espouse the search for truth, verification, and fairness.
Yet the propaganda campaign has succeeded. Polls show that Americans’ trust in national news reports is at an all-time low, with “the press” ranked even less trustworthy than the U.S. Congress. Responsible members of both political parties should denounce such attacks on the press. They swore an oath to uphold the Constitution and that includes the First Amendment.
On this Law Day, let us all celebrate the press and pledge to keep it “free” from government interference, as well as from the vicissitudes of economic and technological change.
Steve Zansberg is a First Amendment lawyer at Ballard Spahr in Denver. He is the president of the Colorado Freedom of Information Coalition and a past chair of the American Bar Association’s Forum on Communications Law.