Defining the Land of the Fourth Estate

By Nicholas Johnson
Visiting Professor of Law, University of Iowa College of Law

"Congress shall make no law ... abridging the freedom of speech or of the press. . . . "

(Amendment 1, Bill of Rights, U.S. Constitution, 1791)

These words enshrine freedom of the press in the U.S. Constitution, the document that forms the structure of government and undergirds U.S. law.

In constructing the framework for U.S. government, the Constitution establishes a balance of power between the legislature, the judiciary, and the executive (the president and the administration). Each branch is imbued with separate and distinct powers that establish a system of checks and balances. The Founding Fathers painstakingly designed this governmental architecture to create a system in which the distribution of power among the branches would contribute to stability.

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 British empire. With journalistic freedom protected in the 1791 Bill of Rights, the press became an assertive force during the first decades of nationhood. The U.S. media today is frequently known as the Fourth Estate, an appellation that suggests the press shares equal stature with the three branches of government created by the Constitution.

The Law

The presumption against regulation of the press in U.S. law can be described in a few paragraphs, but volumes have been written about the sometimes bruising and bitter struggles waged to protect press freedoms and contain the excesses of irresponsible journalism. Through it all, the independent judiciary has been an essential partner in protecting freedom of the press.

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 U.S. federal judges is a key factor in the evolution of the legal protections enjoyed by the media. Federal judges are appointed by the president and approved by the Senate. Once in office, they remain for life, deliberately sheltered from outside pressure exerted by political interests or by executive or legislative branch officials. Judges' salaries cannot be reduced and it is virtually impossible to remove them.

Beyond these constitutionally-based principles, few, if any, laws or regulations govern the practice of journalism. The U.S. government does not license journalists or control supplies of newsprint and printers' ink. Journalists are, however, subject to the same laws generally applicable to all citizens. Newspapers, broadcast stations, and journalists must pay sales and income taxes like other businesses and citizens. Journalists are held accountable to laws regarding property trespass and highway safety just like any other citizens, no matter what their zeal to pursue a story.

The Market

Economics plays a major role in shaping the information served up to the U.S. public in newspapers, on radio and television, and now on the Internet. The media are profit-driven enterprises. While nonprofit and advocacy organizations have significant voices in the U.S. media, most of the public's primary sources of information -- major urban newspapers, the weekly news magazines, and the broadcast and cable networks -- are in business to make money.

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 U.S. news consumers, who are capable of judging balance and accuracy in reporting among the array of journalistic products available in the information marketplace. These media-savvy citizens are quick to point out the biases and errors that appear in papers or in broadcast reports. So media owners who attempt to skew news coverage to reflect their own biases risk losing the audience, and if the audience is lost, so is the revenue from advertisers who want to reach that audience.

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 U.S. journalism today. When businesses threaten to sue over critical investigative journalism pieces or to cancel advertising, an editor or news director must decide whether to use a provocative story, even it if risks the loss of revenue or the loss of his or her own job. Thus self-censorship resulting from this dilemma, and others, may be the most prevalent form of censorship influencing the content of U.S. media today.

The Airwaves

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 United States, unlike most countries, did not choose to have stations owned and operated by a government agency or government-funded public corporation. Instead, it chose a hybrid system for the new medium. A station's equipment would be privately owned, but its right to broadcast would be regulated by government and limited by license.

The Federal Communications Commission (FCC), established in 1934, is the U.S. regulatory agency responsible for issuing broadcast licenses and for monitoring whether licensees serve "in the public convenience, interest, and necessity." In the early years, winning the privilege to hold that license required the station owner to limit the quantity of advertising and to carry a range of programming -- including a large dose of news and public affairs. But aside from that, there was little, if any, interference in the content.

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.

The Watchdogs

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.