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With Congress attempting to define journalism again, it seems like a good time to revisit the whole "free press" thing. Understanding why the founders thought a free press was essential ultimately helps us determine whether federal overreach into protected liberties is appropriate.
In 1799, James Madison explained:
Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.
The argument being that a free press was simply a given and not a right that required enumeration in the Constitution. Alexander Hamilton's arguments on the subject ultimately resulted in the ninth amendment (among other reasons, but free press played a role). At the time, the notion of the press as the fourth estate and completely separate from government was still alive and well. Representative James Jackson of Georgia said:
The gentleman (Madison) endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. … An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the constitution provides that a member shall not be questioned in any place for any speech or debate in the House?
The second portion of his remarks were referencing the British common law restraint on free speech and free press - seditious libel. British subjects were free to say or write whatever they liked, but if a member of the social hierarchy or government deemed remarks offensive or harmful, subjects engaging in free speech could be prosecuted and punished, regardless of the veracity of their statements. Remnants of these libel laws survive in current American laws, but they're vastly different from their predecessors. In any case, the application of seditious libel was not uniform or unbiased but was often used to suppress dissenting opinions.
In 1735, a German American printer by the name of Peter Zenger established precedent when he challenged seditious libel in New York courts. Arrested for criticizing the Royal Governor, Zenger claimed that because his statements were true, he should be exempt from conviction. Zenger won, laying the groundwork for the libel laws still in place.
Fast forward to today. Our founders never envisioned a situation where the federal government would believe it held any jurisdiction over the press, let alone that Congress would attempt to regulate the press or define journalism. Regardless of technological advances that are reshaping our consumption of news and information, our right to a free press should remain free and independent of federal government hands.
Commenting in a recent article for Watchdog.org, FreedomWorks' Director of New Media, Kristina Ribali weighed in on the issue:
Gone are the days when the masses had to depend on the New York Times to get their information. The decentralized era of media that has been brought to us by the internet age has given us options, and many times has also given us stories that the main stream media simply refuses to cover. Today's bloggers are the pamphleteers of our time. They are holding elected officials accountable at every level of government. No wonder Senator Feinstein wants more regulation. I recall the English Monarchy being none too happy with Thomas Paine when he dared to challenge the rulers in his day.
At FreedomWorks, we rely on local bloggers across the country to share the stories that aren't being shared elsewhere. They are the devoted activists which attend town halls, school board meetings and bravely take on entrenched politicians who often have a larger outlet or "bully pulpit." Our bloggers are an important part of educating our membership and activists nationwide. They're a trusted source in their communities and efforts to silence them goes against everything our founders believed in.
We find ourselves in the unfortuate scenario where we are fighting Constitutional assaults on all fronts. Yet if our right to a free and independent press is infringed, all other rights fall. Our ability to be informed and the free flow of information, regardless of how damaging it is to elected officials, is one of the most essential safeguards to our liberty. The fight for a free press is one that we absolutely cannot afford to lose.Follow Kemberlee Kaye on Twitter