Defining the Land of the Fourth Estate
Visiting Professor of Law,
"Congress shall make no law ... abridging the freedom of speech or of the press. . . . "
These words enshrine freedom of the press in the U.S. Constitution, the document that forms the structure of government and undergirds
In constructing the framework for
By the early years of the republic when this system of checks and balances was devised, a daring journalistic community had already become established. A bold and scrappy press was an influential force in denouncing the rule of an English king and leading Colonial America into its revolution against the
The presumption against regulation of the press in
Several critical court cases have been landmarks in establishing the rights of the press to pursue information and to publish government documents or derogatory information about public figures. For instance, the U.S. Supreme Court sided with the newspapers, rather than the government, in permitting the publication of what came to be known as the Pentagon Papers. Newspapers printed these confidential Vietnam War documents, unofficially obtained, over the government's objections.
The U.S. Supreme Court also has held that the media should have some First Amendment protection from the laws of libel -- lest fear of lawsuits and possible monetary damages might disincline media owners from fully reporting on public matters. In order for a public figure to win a defamation case against a media defendant, the plaintiff must show "actual malice," which the courts have defined as knowledge that the published statement was false or as "reckless disregard of whether it was false or not."
The genuine independence of
Beyond these constitutionally-based principles, few, if any, laws or regulations govern the practice of journalism. The
Economics plays a major role in shaping the information served up to the
The protections of the First Amendment are extended not directly to journalists who do the newsgathering, but to the owners of the media outlets through which this information is disseminated. Media owners may choose to give enormous freedom to their editors and reporters. They may consider it good business -- and good journalism -- to do so. But that is a matter of choice, not law. A newspaper's journalists have no more legally enforceable rights to have their stories printed than readers have rights to have their letters printed -- or, for that matter, to buy space in the newspaper to promote a point of view the owner wishes to censor.
The First Amendment right to speak, the U.S. Supreme Court has ruled, includes the media owner's right to censor everyone else's speech in his or her medium. This is true even if it is the only newspaper, radio station, or TV station in town. The net effect is that the only citizens who have an absolutely unrestricted First Amendment right to disseminate their views in the press are those few who own media outlets.
Media companies are restrained from disseminating reports that reflect solely their own biases and agendas, however, by
Newspapers, and some broadcasting networks, used to pride themselves on the "wall" between the advertising and news departments. Some critics charge that wall has been crumbling. In part this is the result of the merger of increasing numbers and varieties of media into fewer and fewer corporate hands. Detractors of this corporate consolidation fear that a network news division will no longer be accepted as a financial loss that compensates for its cost with the prestige it provides. Today, corporate boards of directors may view news as just one more "profit center," with a contributory impact on the "bottom line" and the stock price.
Balancing the cost of high quality journalism against corporate profits is one of the significant challenges in
Print and broadcast media share the same journalistic freedoms guaranteed by the First Amendment. For the privilege of using the public airwaves, however, broadcasters are subject to government regulations not imposed on their print colleagues. The Radio Act of 1927, the first law governing the broadcast medium, reflects the physical limitations of the broadcast band. Not everyone who wants to broadcast can do so because signals would interfere with one another and no service could be provided to the audience.
When national policies were being formed in the 1920s and 1930s, the
The Federal Communications Commission (FCC), established in 1934, is the
For the past 30 years, there has been a movement toward deregulation of broadcast media. Today the FCC imposes essentially no meaningful programming standards regarding quality or quantity. The agency has lifted earlier regulations that limited the number of stations that one owner could control in any one city, and individual corporations, which have largely replaced individual humans as the licensees, may hold licenses to hundreds of radio and television stations.
Critics allege that fewer licensees results in less diversity in broadcast programming. As corporations buy up chains of radio stations, for instance, they tend to homogenize their sound, offering less programming targeted to local audiences.
Given the central role of independent journalism in a democratic society and the absence of a constant regulator, citizens, interest groups, and journalistic associations have launched independent, nongovernmental efforts to monitor and report on media quality. None of them, of course, has any meaningful enforcement power, but they are effective in re-enforcing the principles of fairness, truth, and accuracy in reporting.
Moreover, many publications have found it useful to create the position of ombudsman -- a semi-independent employee to whom readers can go with their complaints about the publication and the quality of its news coverage. The ombudsman may report on those complaints and how they were resolved in the pages of the publication.
Few institutions are more important to a democratic society than a free and independent media. Such freedom requires the public, elected officials, and civic organizations to support truth, fairness, and balance in reporting and to insist that media outlets honor the principles that empower them.