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Freedom Of The Press

by Gary McGath for the Foundation For Economic Education

A paradox of our time is that newspapers and other publications—which are private businesses—are so often hostile to private business. It would seem natural for publishers to take a pro-business stance, if only to defend their own interests. Yet far more often, they attack business and private property with no apparent concern that they might become the victims of what they advocate. They show no fear that their own businesses might be subjected to the regulation, punitive taxation, and harassment which they recommend for business in general.

There is an explanation for this paradox. Publishers believe that their own freedom differs in its source from the freedom of others, and therefore that their attacks on business do not apply to themselves. They believe that they are protected by their own special wall of defense, called “freedom of the press.”

The obvious explanation for this point of view is that the First Amendment singles out this freedom for explicit protection. While the forgotten Ninth and Tenth Amendments make it clear that the Constitution recognizes other rights as well, the First Amendment rights certainly have fared better under the law than the unnamed ones. But there is a further reason why the press so often regards its freedom as something private and isolated.

A particularly good illustration of the philosophy which grants a special status to press freedom is provided in Editor and Publisher, the nation’s leading newspaper trade journal, in an article presenting the views of Harvard Constitutional Law professor Laurence Tribe:

Tribe explained the Burger Court viewed the “marketplace of ideas” as being comparable to “the marketplace of commerce” in which government is free to regulate to correct any “imperfections in the invisible hand.”

“What’s good enough for the marketplace of commerce must be good enough for the marketplace of ideas,” Tribe said, noting “the hostility of the Supreme Court’s marketplace concept to the First Amendment. Devotion to the market is often a mask for suppression of ideas.” (“First Amendment Trends Alarm Media Lawyers,” Editor and Publisher, 12/ 5/81.)

By splitting rights into one set for the “marketplace of commerce” and a different set for the “marketplace of ideas,” publishers try to lift themselves above the “imperfect” material world into a realm of pure ideas which are not subject to any outside control. This, they suppose, is the justification for the Constitution’s guaranteeing freedom of the press but not freedom of trade; so they sense no threat to their own freedom when they attack the latter.

How real is this division, though? Are newspapers and magazines really entities of the spirit, divorced from the lowly world of commerce? Virtually all of them are offered for sale or carry commercial advertisements. Like any other businessmen, publishers are concerned with profit and loss. The fact is that The New York Times and Newsweek are businesses just as are General Motors and Apple Computer.

Can we say that publishing, though a business, is superior to other businesses because it deals in ideas? Such a claim reflects an unbalanced view of human nature. Human beings are creatures of both mind and body, and the two are inseparable. Without thought, people cannot satisfy their material needs; without matter, they cannot put their thoughts into practice. All businesses deal in ideas—what products to introduce, how to present them to the public, how to maintain an efficient organization, and so on. Publishers differ only in that the ideas are an obvious part of their end product. Even so, this does not make them inherently superior to other businesses; the food people eat is as important to their existence as are the facts they know.

If one believes that “devotion to the market” consists of limiting and controlling it, as Professor Tribe apparently does, the same considerations have to apply to all portions of it. If people cannot be trusted with a free choice as to what they buy and sell, how can they be granted free-dora to accept or reject information? Choosing a car or a breakfast cereal is relatively easy; the prospective customer can examine the product and decide whether to buy. But if we suppose that people cannot muster the rational judgment to do this, how can we expect them to judge a story about events they have never seen?

Using Judgment

The basis of freedom is the premise that people must act on their own judgment in order to live. If this need did not exist, if people were better off being compelled to follow the decisions of authorities, then a free press would be just as useless as free trade.

The two kinds of freedom cannot be separated in practice any more than they can in principle. Publications depend on a vast range of commercial activities for their own needs, without which they cannot reach the public. They need buildings in which to operate, communication services for gathering information, financial services to fund their operations, computers for data storage, paper and ink for printing, vehicles for delivery, and much more. If the government denied publishers the right to obtain and use these necessities, it could shut down their operations without resorting to explicit censorship.

The material expression of freedom is in the form of property rights. If these rights are subject to “correction,” they are as conditional for the press as for anyone else.

This creates a dilemma for those who regard press freedom as something separate from economic freedom. They recognize the danger of attacks on the press through its commercial foundations, yet they are unwilling to defend those foundations. To escape this dilemma, they are forced to adopt the view that “freedom of the press” refers not to the freedom to engage in a certain type of activity, but rather to a freedom belonging to a certain class of people.

This view maintains that the government may impose certain restrictions on people in general, but must exempt publishers and reporters. Press freedom, under this view, is not the freedom to use one’s own property for making facts and ideas known. Instead, it consists of such matters as immunity of reporters to subpoena, exemption of reading matter from taxation, and guarantees that the press may attend public events. (Some of these matters have a bearing on the government’s obligation to disclose information, but this is a different issue from people’s freedom to report and discuss the facts.)

It has even been argued that the rights of the press override the property rights of others. According to an article in Editor and Publisher, recent court decisions are tending toward the view that the First Amendment permits reporters to trespass on private non-residential property because of “the public interest in obtaining information.” (“Reporters and Criminal Trespass,” April 28, 1984.)

The consequences of ascribing rights to a professional class have been devastating. This view sets up “the press” as a separate class of citizens with separate rights. It makes it possible for them to attack the freedom of people in general without undercutting their own freedom. At the same time, it has excluded other sources of information and ideas—notably broadcasters—from the protection of the First Amendment. The United States government, which would never dream of licensing newspapers, licenses television and radio stations as a matter of course.

This is not to say that if publishers were in the same boat with the rest of us, they would automatically be pro-freedom. One’s basic views are a matter of implicit or explicit philosophy and do not change just because of a change in the immediate consequences of expressing them. But having to face the consequences of the ideas they advocate would at least encourage them to think about the meaning of those ideas.

An Untenable Claim

Press freedom cannot exist by itself. As a Platonic ideal of freedom in the realm of ideas without freedom in the material realm, it is untenable; until someone invents telepathy, physical means will be necessary to convey ideas. As a right that belongs only to a certain group of people, it is equally hopeless; freedom is not served by establishing elites. Because it has been cut off from liberty in general, press freedom is not an issue that excites the public today. There was no public outcry when the Federal Elections Commission investigated the Reader’s Digest in 1981 for allegedly violating election laws by criticizing Ted Kennedy. Nor did many people care when reporters were excluded from the invasion of Grenada.

By the same token, this separation endangers freedom in general. If members of the press see themselves as a “Fourth Estate” with a special charter, they will not see how threats to other people’s freedom threaten their own as well. Yet the fact is that the legitimate rights of the press are simply a particular instance of property rights. If the right to property is abolished, the press will lose its freedom along with everyone else.

If the press wants to maintain its own freedom, its members will have to identify the actual nature of that freedom. They will have to realize that the basis of any kind of freedom is personal liberty and private property, and that their only hope for survival lies in their defense of these principles.

Freedom of the press and freedom of the market are inseparable. One cannot exist without the other any more than a person’s head and body can be separated and that person still live.

About The Author

Gary McGath is an independent computer software consultant and free-lance writer in Hollis, New Hampshire. The Foundation for Economic Education (FEE), one of the oldest free-market organizations in the United States, was founded in 1946 by Leonard E. Read to study and advance the freedom philosophy. FEE's mission is to offer the most consistent case for the "first principles" of freedom: the sanctity of private property, individual liberty, the rule of law, the free market, and the moral superiority of individual choice and responsibility over coercion.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.