Press and Speech Freedoms in America, 1619-1995: A Chronology

Press and Speech Freedoms in America, 1619-1995

Viewpoints of proponents and opponents of free speech and free press and events affecting those freedoms during four centuries.

PRESS AND SPEECH FREEDOMS IN AMERICA, 1619-1995 A Chronology Compiled by

Louis Edward Ingelhart

GREENWOOD PRESS Westport, Connecticut • London

Library of Congress Cataloging-in-Publication Data Press and speech freedoms in America, 1619-1995 : a chronology / compiled by Louis Edward Ingelhart. p. cm. Includes bibliographical references and indexes. ISBN 0-313-30174-3 (alk. paper) 1. Freedom of the press—United States—History—Chronology. 2. Freedom of speech—United States—History—Chronology. I. Ingelhart, Louis E. (Louis Edward) PN4738.P74 1997 323.44'5'0973—dc20 96-41287 British Library Cataloguing in Publication Data is available. Copyright © 1997 by Louis Edward Ingelhart All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 96-41287 ISBN: 0-313-30174-3 First published in 1997 Greenwood Press, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48-1984). 10 9 8 7 6 5 4 3 2

Dedicated to all those who have or are using the press fully and freely, wisely or foolishly, responsibly or irresponsibly, and to those persons who speak their minds vigorously, intelligently, effectively, or ineffectively.

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CONTENTS Preface

ix

Chapter 1

Freedom of Expression in the Twentieth Century

1

Chapter 2

The Colonial Beginnings 1619 Through 1699

4

Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9

Agitation for Press Freedom 1700 Through 1759

13

The Patriots and Their Revolution 1760 Through 1786

25

The First Amendment Tangles With Sedition 1787 Through 1799

40

Re-emergence of Free Expression 1800 Through 1824

61

The Bitter Causes and Bitter War 1825 Through 1867

75

The Fourteenth Amendment 1868 Through 1899

89

World War I and Censorship 1900 Through 1924

98

viii /Contents Chapter 10 Achieving New Concepts of Free Expression 1925 Through 1949 Chapter 11

119

Freedom of Expression at Mid-Century 1950 Through 1959

143

The Decade of the 1960s 1960 Through 1969

154

The Decade of the 1970s 1970 Through 1979

174

The Decade of the 1980s 1980 Through 1989

197

The Beginnings of the 1990s 1990 Through 1994

215

Chapter 16

The Turbulent Year of 1995

236

Chapter 17

Supreme Court Selected Cases 1812 Through 1995

244

The Promise of the Twenty-first Century

291

Chapter 12 Chapter 13 Chapter 14 Chapter 15

Chapter 18 Notes

295

Selected Bibliography

337

Index of Supreme Court Selected Cases

343

Index of Subjects

347

Index of Persons

355

PREFACE The concern for freedom of the press has been kindled by Frank Luther Mott at the University of Missouri, by Edwin Emery at the University of Minnesota and his son Michael Emery, and by Leonard Levy, a historian who has written extensively about press freedom. Fortunately, Leonard Levy continues to write, but Mott and the Emerys are deceased. This book recounts nearly 2,400 episodes, related events, and viewpoints about press and speechfreedomsin America from 1619 through 1995. There are more than 180 bibliographical sources mentioned. Many more items could have been included, but those presented outline the history and development of America's concept of free expression. To understand how Americans and others have struggled for freedoms, the persons and agencies opposed to free expression are given their due. Organization of the materials in this book is first presented in a yearly chronological fashion beginning in 1619 and continuing through 1995. Within each year the entries are arranged in alphabetical sequence, although it was often difficult to pick the name or agency whose initial letter to use. Here is the nature of the content: 1. Views and comments of persons in favor of freedom of speech, or of the press, or, expression generally are presented. 2. Views and comments of persons opposed to freedom of speech, or of the press, or of expression generally are presented. 3. Some incidents and episodes that occurred historically that affected freedom of speech, or of the press, or of expression generally, or of the human condition are recorded to provide a perspective of understanding. 4. Technological changes and applied inventions are mentioned from time to time because communications media have always been driven by technology, and in our time by the development of modern offset presses and computerized typesetting. The electronic media and today and tomorrow's computers and satellites must be considered. The new technologies allow for predictions into the twenty-first century.

x /Preface Standard referencing notations appear in the end notes. Many of the items can be located, however, in many sources. This book has an extensive history of sources aboutfreeexpression at its conclusion. In addition there are many journals containing such content Almost daily, broadcast news and newspapers or magazines report free expression developments. In 1992, the Freedom Forum of Arlington, Virginia, began publishing annual calendars with quotations about free speech and free press. These are wonderful collections. Whenever one of them has been used as a source, the notation reads "Freedom Forum Calendar, May 1,1992" or later years. None of the items in Chapters 2 through 16 are under current copyright control because copyright has expired or because fair use provisions apply. An extensive effort has been made to document the many sources involved in the episodes, events, developments and viewpoints depicting America's journey toward freedom of speech, press, and expression. Each item presented is an important part of that history and today's America. It is certain that hundreds of additional items could be discovered and presented. The book does not contain many commentaries by the author on several categories of information. One of the areas the author avoids are court decisions or statements by judges aboutfreedomof speech, or of the press, or of free expression. This is because there have been thousands of such decisions provided by the Supreme Court, lower federal courts, and state courts at all levels. Chapter 17 presents more than 250 reports about Supreme Court rulings. Other courts are not reported. Persons interested in the rich treasure of court decisions would be well-advised to turn to such sources as the West Law Reporter and Media Law Reporter for extensive and detailed reports and discussions. There are computer data sources also available such as Nexus-Lexus. The American Bar Association, through its Division for Public Education at 541 North Fairbanks Court, Chicago, IL 60611-3314, has available a tape covering all Supreme Court decisions. Some of these legal sources are fairly heavy going for the neophyte. An excellent book for such persons is Harold Van Winkle's 1995 Speaking Freely produced by Mancorp Publishing of Tampa, Florida. This book pays little attention to the legal or constitutional standing of high school or collegiate protections for freedom of expression for student speech or publication. These are areas of great importance and can be evaluated from publications and resources of three national agencies. They are: 1. The Journalism Education Association concerned with the high school level. Information can be obtainedfromthe headquarters at Kansas State University, Kedzie Hall 103, Manhattan, KS 66506. 2. College Media Advisers for the college level at the Department of Journalism, University of Memphis, MJ-300, Memphis, TN 38152. 3. The Student Press Law Center at 1101 Wilson Blvd., Suite 1910, Arlington, VA 22209. The Press Law Center serves both the high school and college levels and published an updated 1994 edition of its Law of the Student Press. There are several

Preface / xi national service agencies and organizations which deal with the press. An excellent general source is a book by historian Leonard Levy, titled Emergence of a Free Press. Levy had written an earlier book titled Legacy of Suppression, but he became dissatisfied with it, and, being an honorable scholar, he sets the historical record straight with the Emergence book. He explains his evaluation of the Legacy book in the preface he provided for the Emergence book. The multi-volume Documentary History of the Ratification of the Constitution edited by Merrill Jensen, John Kaminiski, and Gaspare Saladino utilized the extensive holdings of the State Historical Society of Wisconsin to trace the conflicts of the Constitutional debates that ended with the adoption of the Bill of Rights in 1791. There are other multi-volume sets also available. The development of free expression in the other nations of the world has also been omitted. Finally, the author abandoned his own clever and pithy statements about free expression so the content is devoid of some ego. Perhaps a marvelous beginning for a person eager to go beyond the information in this book would be two volumes produced by Ralph Edward McCoy, a librarian at Southern Illinois University. He authored Freedom of the Press: An Annotated Bibliography, 1968, and a second volume in 1979, Freedom of the Press: A Bibliocyclopedia. The press and the media are not a monolithic entity that can be controlled by codes of ethics, pressures, associations, or even by government regulations. The press is far too diverse in form, purpose, viewpoint, and vigor to expect anything approaching harmony, unity, or agreement on any subject. Speech is even more farreaching and undisciplined. At least that is how freedom of expression stood at the end of 1995.

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Chapter 1

FREEDOM OF EXPRESSION IN THE TWENTIETH CENTURY Most journalists glow warmly when they think about the First Amendment to the U.S. Constitution. Many can even recite its 45 wordsfrommemory. Unfortunately in the hurly-burly of American jurisprudence the First Amendment loses some of its absolute naturefromtime to time. There are, however, other possible constitutional protections that could be sought to help the journalist, speakers, and other persons. These provisions can be found in 50 state constitutions. All guarantee the liberty of speech and the liberty of the press. Any person may speak, write, or publish on all subjects according to 41 of these constitutions. In 29 states, legislatures cannot pass any laws abridgingfreedomof speech or press in case they might be tempted to do so. Seven constitutions indicate that the press isfreeto examine the government and the official conduct of men in public capacities, and three say the press is free to examine the proceedings of their general assemblies or any other branches of state government. Constitutions proclaim that the liberty of the press is inviolate in five states and in three liberty of the press is considered a bulwark offreedom.Two constitutions proclaim that liberty of the press is sacred. One state constitution provides that reporters cannot be compelled to reveal sources of information. Generally, these reporter shields appear in statutes. In 42 of the state constitutions provisions indicate that persons will be held responsible for any abuses of speech or press. But what are the legal abuses of the First Amendment guarantee offreespeech and press for which a person may be held responsible? The answers have been provided by the U.S. Supreme Court in decision arrived at in the 1900s. 1. Actions and conduct alone are not protected; however, if they contain an element of expressiveness, even symbolically, they may not be devoid of at least some First Amendment protection. 2. Fighting words which invite lawless reactions are not protected if they are

2 / Freedom of Expression in the Twentieth Century personally abusive epithets which when addressed to the ordinary citizen are likely to provoke violent actions. However, expressions which stir people to anger, invite public argument, cause unrest, or create merely an apprehension of disturbance are not fighting words. 3. Substantial threats to national security are not protected. 4. Obscenity, if it fails the provisions specified by the Supreme Court in its 1973 Miller decision, is not protected. The Supreme Court, however, ruled that depictions of children (individuals 17 years old or younger) engaging in sexual activities are so odious that they have no constitutional protection. Because of the special nature of public schools, the Courts have ruled that a lesser standard of obscenity can apply to the expressions of students so that even vulgar or indecent language can be proscribed. 5. Defamation which can be either libel or slander is not protected by the First Amendment unless legal justification for its publication or voicing can be presented under provisions of state law. Material which is true is not considered defamatory. There is also a federal defense against defamation lawsuits available under provisions of the New York Times v. Sullivan decision of 1964 concerning public officials and public figures and in later decisions. 6. Unwarranted invasion of privacy may occur according to some state statutes if the material appropriates the name or personality of an individual for commercial purposes without a legal agreement to do so, intrudes into the private space of a person, holds a person up to a false light, or publishes private facts not of public concern. However, if such material is news worthy it is not considered to be an invasion of privacy. 7. Commercial advertising is not protected by the First Amendment. It can be regulated reasonably by the state. However, advertising which presents ideas, information, political advocacy, editorial views, or opinions does enjoy First Amendment protection. 8. Copyrighted material cannot be used in any extensive manner by anyone without the approval of the copyright holder. This constitutional provision is not considered a conflict with the First Amendment. State and federal statutes pertaining to these areas exist for specific criminal punishments or for civil judgments. In addition to working out the legal incorporation of the First Amendment under the umbrella of the Fourteenth Amendment, the Supreme Court has considered, followed, modified, or rejected several legal doctrines and views in adjudicating First Amendment cases. The Court has decided that government is prohibited from exercising prior restraint or censorship of expressions qualified for protection under the First Amendment. The Court has ruled that government must prove that there exists a compelling state interest in establishing regulations concerning expression not qualified for First Amendment protection. The Court has ruled that any regulation of unprotected expression must be reasonable, specific, and clear, and regulate the problem it is designed for. These regulations cannot be vague, over-broad, over-severe, illegal, or unconstitutional. The U.S. Supreme Court throughout the twentieth century has allowed

Twentieth Century / 3 government agencies to apply reasonable regulations as to the time, place, and manner of exercising free speech and press.

Chapter 2

THE COLONIAL BEGINNINGS 1619 THROUGH 1699 General Events and Perspectives 1619 —The first Negroes were brought to the American colonies as indentured laborers. Indentured persons were able to gain their freedoms after a contracted period of servitude. These persons arrived a year before the Pilgrims came to Massachusetts. Their Mayflower Compact of 1620 was the first document concerning human liberty to be created in the new world. 1631 —Settlement of Boston began.l 1641—Slaves revolted in New York. When English authorities prevailed, they hanged 13 slaves, burned 13 others, and deported 71. 1676—Nathaniel Bacon became leader of Virginia planters who revolted against English Gov. William Berkeley, an autocratic tyrant. The planters burned Jamestown, but the revolt failed.2 Freedom of Expression 1620 The Virginia House of Burgesses judged Captain Henry Spellman guilty of treasonable words and stripped him of his rank in 1620. Throughout the colonies, hundreds of persons were tracked down by various messengers and magistrates and dragged into legislative houses to make confessions for words or writings which had given offense throughout the 1600s.3

1619 Through 1699 / 5 1622 Governor William Bradford and Plymouth Colony checked dissent and seditious practices. 1629 John and Samuel Browne were expelled from Massachusetts by Governor Endicott for their dissent from ecclesiastical pronouncements made in Salem, Mass. 1633 Roger Williams had to recant his opinion that the titles to lands taken from the Indians to the New Plymouth Council were illegal.4 1635 Roger Williams was brought before the General Court for his views about English churches. His Salem church sent letters to other churches condemning the magistrates. The Salem church leaders were punished; Williams fled to the wilderness to avoid punishment. The Massachusetts legislature, sitting as the General Court, banished Williams for the crime of disseminating "news and dangerous opinions, against the authority of the magistrates."5 1637 A special synod banished Anne Hutchison from Massachusetts and punished many of her followers who had become a political force after participating in several seminars evaluating church doctrine and sermons.6 Thomas Morton published his New English Canaan as part of his effort to have the Privy Council revoke the Massachusetts charters of the Puritans and Pilgrims. He had founded Merry Mount in 1624 as a non-religious and boisterous settlement near Boston, which the Puritans hated and harassed. After the Puritans lost their charter, Morton returned to Boston and was arrested in 1644 for the book but the Puritans had to let him go.7 1639 Joseph Glover died enroute to Boston and his press arrived in the city that year. Several months later Stephen Daye began production on the press in Cambridge. Harvard College had the press set up to produce almanacs, sermons, catechisms, psalters, law books, and broadsides. When a second press was added, a Bible in an Indian language was printed. A book written by Thomas Lochford was submitted for printing in Cambridge, but Thomas Dudley condemned it as dangerous, erroneous, and heretical.8 1640 The first book printed in America, commonly called The Bay Psalm Book, was entitled The Psalms in Metre, Faithfully Translatedfor the Use, Edification, and Comfort of Saints in Publick and Private, especially in New England.9

6 / The Colonial Beginnings The first item printed in Massachusetts was the "Freeman's Oath" l0 in which householders had to affirm: I do solemnly bind myself in the sight of God, when I shall be called upon to give my voice touching any such matter of this state, in which freemen are to deal, I will give my vote and suffrage as I shall judge in mine own conscience may best conduce and tend to the public weal of that body, without respect of persons, or favor any man. 1641 Henry Dunster became president of Harvard College, married the Widow Glover, and managed the Cambridge press.11 1642 Richard Saltonstall was forced by the Massachusetts Council to apologize and recant his treatise on a proposed Council of Life. Governor John Winthrop believed several passages offensive and unwarranted.12 1643 Stephen Daye was arrested in Boston for printing material which displeased the authorities who forced him to post a 100-pound bond not to do so anymore.13 1644 Many persons read a book on midwifery, not because of interest in those procedures, but because the book which discussed sex education for young people really attracted Northhampton, Mass., readers because the book was somewhat pornographic. Roger Williams wrote The Bloudy Tenent of Persecution, for Cause of Conscience exempting all matters of conscience, even scandalous doctrines opposing the government, from prosecution except for sedition, or perhaps opinions leading directly to the commission of a crime. Williams, in pleading for tolerance, cautioned that "I speak not of scandals against the civil state, which the civil magistrates ought to punish." 14 1645 A seven-page pamphlet printed at Cambridge was the first effort at news publication in the colonies. It was entitled " A declaration of former passages and proceedings betwixt the English and the Narrowgansets, with their confederates, wherein the grounds and justice of the ensuing warre are opened and cleared. Published by order of the Commissioners for the United Colonies: at Boston the 11 of the sixth month 1645." 1646 Samuel Gorton was tried for blasphemy in Massachusetts, confined at hard labor, and forced to wear heavy irons. If he repeated any of the ideas in his two books, he

1619 Through 1699 / 7 would be executed. He was banished back to England where he published an expose of his treatment. His book was called Simplicities Defence against Seven Headed Policy.15 1647 In Massachusetts, John Wheelwright, Anne Hutchison, a half-dozen or more of their Antinomican followers, Peter Hobart, and others involved in the Hingham affair, Robert Child and his six associates, and Samuel Gorton all were convicted of seditious sermons, petitions, or remonstrances against the civil authorities.16 1648 In the Cambridge Platform adopted at the third session of a special synod, Massachusetts was authorized to continue restraining offenders from "venting corrupt and pernicious opinions." l7 1649 The General Court in Massachusetts tried but failed to set up a board of licensers for the press. 1650 James II instructed Governor Thomas Dongan of New York: And for as much as great inconvenience may arise by the liberty within our province of New York, you are to provide by all necessary orders that no person keep any press for printing, nor any book, pamphlet or other matters whatsoever be printed without your special leave and license. ,8 Massachusetts authorities began prosecuting Baptists and Quakers for their tendency to disturb the peace with seditious utterances.19 Three members of the Mather family of Boston produced at least 621 written works in the 1650s. Cotton Mather wrote 444 works in seven languages. Many were translated into Indian languages. Jepeosa Mather wrote 102 and Richard Mather wrote 75. 1652 William Pynchon of Springfield had tofleeto England to escape punishment from the General Council of Massachusetts for his religious tract, The Meritorious Price of Our Redemption. The authorities considered it "erroneous and hereticall" even though it had been licensed in England.20 1654 Henry Dunster, president of Harvard College, was convicted of breaking the peace with his sermon on infant baptism. He was prosecuted under common law for religious speech. Since he would not retract his statements, the General Council asked

8 / The Colonial Beginnings for his resignation. Its reasoning was that anyone holding unsound doctrines shouldn't be allowed to teach youths. He sold his printing presses to the College.21 1656 Quakers Mary Fisher and Ann Austin were banished from Massachusetts and the books they owned were seized and burned.22 1661 John Eliot, a distinguished Massachusetts leader, was forced to retract statements scandalizing the government. His book, The Christian Commonwealth, which advocated that rulers be elected, was suppressed because the General Court wanted to establish good relations with Charles II. 23 1662 President Henry Dunster and then President Charles Chauncey of Harvard had supervised the Harvard press so closely that formal censorship was unnecessary. Aggressive Quakers, the royal command for ending religious persecution, and controversy about the Massachusetts synod inspired the General Court to issue rules to censor the press under two licensers—Daniel Gorkin and Jonathan Mitchell. For a long while the only two printing presses were controlled by Chauncey of Harvard College.24 1663 The General Court repealed the press control order and said the press was at liberty in Massachusetts.25 1664 For printing of "Irregularities and abuse to the authority of this country, by the printing presse, it is ordered by this court and the authority thereof, that there shall be no printing presse allowed in any towne within this jurisdiction, but in Cambridge, nor shall any person or persons presume to print any copie but the allowance first had and obtayned under the hands of such [persons] as this court shall from tyme to tyme impower." Thus, Boston authorities set up a control mechanism for the press, to regulate liberal religious materials that appeared in 1662.26 1665 Massachusetts set up a board of licensers to censor and prohibit any press being set up outside Cambridge. Marmaduke Johnson returned from England with a press, but the General Council decided he could not set it up in Boston because Cambridge was the only place presses were allowed.27 1667 Imitation of Christ, a book by Thomas Kempis, was considered too popish and heretical; consequently, work on the book was stopped. M

1619 Through 1699 / 9 1668 Marmaduke Johnson and Samuel Green were called before the General Council to prove they had permission to publish books. 1669 The Massachusetts General Court ordered several revisions for a reprint of the Kempis book, Imitation of Christ.29 1671 Sir William Berkeley, governor of the colony of Virginia, said, "I thank God we have not free schools nor printing; and I hope we shall not these hundred years. For learning has brought disobedience and heresy, and sects into the world; and printing has divulged them and libels against the government. God keep us from both."30 1674 The Boston General Court, having relaxed its rule about where printing presses could be, appointed additional licensers to evaluate the suitability of proposed printed materials.31 1678 Col. Philip Ludwell, a member of the Virginia Governor's Council, called the Governor a law-breaker; his fellow council members fined him heavily for scandalizing the government.32 1680 Samuel Seawell was granted a press monopoly in Boston.33 1682 John Buckner printed the 1680 laws of Virginia and was required to post a 100 pound bond as a pledge never to print anything again, since he had not obtained Lord Thomas Culpepper's permission to publish the laws.34 Peter Chocke called the governor of New York the worst in the province's history. These words were considered so criminal that Chocke was tried in the province's highest court.35 1683 Lord Effingham was ordered not to allow the use of printing presses in the colonies. Printing was forbidden in Virginia from 1683 to 1729. William Perm presided over a Pennsylvania council meeting when it ordered that the laws of the colony not be printed.36 1685 William Bradford set up the first printing press in Philadelphia. His first

10 / The Colonial Beginnings publication was an almanac which was censored in manuscript. He was warned not to print anything but what "shall have lycense from ye Council." The Quaker censor wouldn't let him print a Bible translation. The council forced him to post a bond for his printing behavior, and even jailed him.37 John Curtis of Philadelphia was prosecuted for speaking treasonable words. Virginia Governor Lord Effingham issued an official proclamation condemning the "over lycentiousness of the People in their discourses" and reminded that any remark tending to sedition was criminal.38 1686 Joseph Dudley, president of Harvard College, was executive head of Massachusetts with full authority to control the press. England empowered all provincial governors to control the press thus: And forasmuch as great inconvenience may arise by the liberty of printing within our said territory under your government you are to provide—by all necessary orders—that no person keep any printing press for printing, nor that any book, pamphlet, or other matters whatsoever be printed without your especial leave and license first obtained.39 1687 John Wise (known as the first great American democrat), five of his associates, and several other persons were tried and convicted of seditious libel for declaring a tax not levied by the Assembly was contrary to Magna Carta and did not have to be paid.40 1689 Governor Edmund Andros tried to suppress John Winslow for reporting William of OrangefightingJames II. Andros was dismissed from office, and the General Court again supervised printing in Massachusetts. The legislature issued a stern warning against all unauthorized printing. William Bradford, pioneer printer in Pennsylvania, published an unauthorized anonymous pamphlet in which the writer told settlers about their rights. Governor Blackwell tried to force Bradford to reveal the name of the author, but Bradford refused. The material the governor and his Provincial Council objected to was the 8year-old Charter of Pennsylvania which was thus printed for the first time.41 John Coode led the Protestant Association in a revolt against Lord Baltimore's Maryland government, especially because of a law "against all sense, equity, reason, and a law punishing all speeches, practices, and attempts relating to his lordship and government, that shall be thought mutinous and seditions." Among the punishments actually used were "whipping, branding, boreing through the tongue, fine,

1619 Through 1699 / 11 imprisonment, banishment, or death" making unsafe the words and actions of everyone.42 A news sheet, The Present State of New English Affairs, was published in Boston.43 1690 In Boston, Benjamin Harris produced Publick Occurences, the first attempted colonial newspaper. One of the news items concerned atrocities committed by Indian allies of the British. Four days after publication the paper was suppressed. The governor and his council warned that they would "strictly forbide any person or persons for the future to set forth anything in print without license first obtained."44 A paper mill was set up in Germantown, Pa. 45 1692 Peter Boss, George Keith, Thomas Bull, as well as William Bradford, were charged with sedition in Pennsylvania for their religious views. Bradford had difficulty getting the government to return his confiscated press.46 William Bradford, first printer in Pennsylvania, became involved in a Quaker dispute. He supported George Keith who was condemned in city meetings but appealed to the general Meeting offriends,Bradford printed his appeal address which the Quakers judged seditious. Bradford was jailed, but released when the government said the matter was a dispute among Quakers. The frame holding the type of the condemned article was brought to court for the jurors to examine. But the jurors couldn't read the backward type. The form was placed perpendicularly so they could see better. One juror poked at the type with his cane; the type spilled to the floor, completely scrambled. Thus, all the evidence was destroyed. Even though Bradford won this way, he left for New York State because the Pennsylvania Quakers disliked him so much. Bradford set up the first printing press in New York in 1693.47 Ben Harris was appointed public printer by Massachusetts Governor William Phipps. Harris printed the acts of the Great and General Court, and of the Assembly. He also printed The New England Primer, a school book. ** The Cambridge press which originated at Harvard College ceased production after having produced 200 books, pamphlets and broadsides.48 The Province Charter of 1692 placed control of the press in the hands of the royal governor of Massachusetts until 1730.48 1695 Thomas Maule, a Quaker merchant, won a victory for freedom of the press in the American colonies with his book criticizing Massachusetts civil and ecclesiastical

12 / The Colonial Beginnings authorities. He was imprisoned and disrupted his trial by repeating his charges and saying he was not afraid of the courts since he had been arrested five times and whipped twice. He was kept in jail with high bail. In 1696, he was finally tried and won acquittal with an impassioned and clever plea to the jury as a matter of conscience. Massachusetts and the church seized and burned Maule's Truth Held Forth and Maintained as an unauthorized publication.49 1696 The Virginia Governor's Council authorized the arrest of four persons alleged to have stirred up sedition by spreading evil opinions of the government.50

Chapter 3

AGITATION FOR PRESS FREEDOM 1700 THROUGH 1759 General Events and Perspectives 1712—Negro slaves again revolted in New York and when they were defeated, English authorities executed 21 persons and six others committed suicide. 1725—Paul de Rapin, a Hugenot exile who became a Whig historian, became the preferred authority for American revolutionaries. His radically whiggish Histoire d'Angleterre plus his A Dissertation on the Whigs and Tories provided a basis for radical and antiestablishment writers.l 1745—Benjamin Franklin had amassed a fortune by the time he was 42 and left the printing business. In retirement he spent his time in politics, diplomacy, science study, philosophy, and operation of the new U.S. post office.2 1758—A minister of the Anglican Church in Williamsburg became so angered when officials decided to pay churchmen in cash payments instead of tobacco that he threatened to refuse to administer sacraments to any scoundrel in the legislature who voted to settle salaries of the clergy in cash instead of tobacco which could be sold for more than a cash payment would provide. Freedom of Expression 1704 Publication began of the first continuous colonial newspaper, the Boston NewsLetter, by Postmaster John Campbell. Although it bore the statement "Published by

14 / Agitation for Press Freedom Authority" it still received frequent rebukes from government officials.3 1715 Newspapers were being used for partisan politics. The Massachusetts Council ordered the sheriff to seize all copies of an anti-Gov. Joseph Dudley booklet and it ordered William Drummer not to distribute his political broadside. 1718 John Checkley, a prominent Anglican minister in the Massachusetts Bay Colony, was prevented from pubUshing a tract critical of Calvinism. He refused to take a loyalty oath and was convicted, fined six pounds, and bound to good behavior. Later Checkley wait to England and returned to Boston with copies of his booklet and other materials to distribute. The court fined him 50 pounds, and the appeals court added another 50 pounds and ordered him to post 100 more pounds to guarantee good behavior. The courts said his "sundry, vile insinuations against his majesty's rightful and lawful authority and the Constitution of the Government of Great Britain consisted of false, seditious, wicked words."4 1719 William Brooker, who became postmaster when John Campbell lost the position, started the weekly Boston Gazette to compete with Campbell's Boston News-Letter, which was the better publication. Andrew Bradford began The American Weekly Mercury in Philadelphia.5 1720 John Colman was arrested in Massachusetts for his tract, The Distressed State of the Town of Boston, because it "reflected upon the laws of the province and other proceedings of the government and has a tendency to disturb the administration of the government as well as the Publick peace." But Colman was never tried. The attorney general and the Massachusetts Council refused to prosecute printers for reporting a controversy between the governor and the legislature.6 The New York legislature punished several persons for offensive comments. One case involved nine citizens; a second included the arrest of seventeen grand jurors for seditious reflections on the Assembly.7 1721 James Franklin came to Boston in 1716 with a press and type. He became printer for the Boston Gazette undo- Postmaster Brooker, but seven months later when Phillip Musgrove became postmaster, Franklin lost his job. Franklin started his New England Courant which contained little news or advertising. Instead, its essays attacked the clergy, the government, and religious writers in severe satire. Out of resentment and at the urging of his friends who "chafed under the rule of civil and religious authorities," the Courant, was not "published with authority." The Courant undertook the first newspaper crusade by attacking small pox inoculations which were being

1700 Through 1759 / 15 urged by the Mathers who were the religious and civil leaders of Massachusetts.8 The Mathers attacked Franklin's Courant in the Boston Gazette, the Boston Newsletter, pamphlets, and broadsides. Cotton Mather wrote: And for a Lamentation to our amazement (notwithstanding of God's hand against us, in His Visitation of the Small-Pox in Boston, and the threatening Aspect of the Wet-Weather) we find a Notorious, Scandalous Paper, called the Courant, full-freighted with Nonsence, Unmannerliness, Railery, Prophaneness, Immorality, Arrogancy, Calumnies, Lyes, Contradictions, and what not, all tending to Quarrels and Divisions, and to Debach and Corrupt the Minds and Manners of New England. Governor Samuel Shute asked for censorship authorization from the General Court. The Council did pass an "Act for Preventing of Libels and Scandalous Pamphlets and for Punishing the Authors and Publishers Thereof." But the House negated this Act Governor Shute dissolved the House and the General Court, thus the press no longer was subject to any licensing authority in Massachusetts since no law existed authorizing licensing. 1722 The Governor of Pennsylvania and his council ordered Andrew Bradford "that he must not for the future presume to publish anything relating to or concerning affairs of this Government, or the government of any of the other of His Majesty's Colonies, without the permission of the Governor or Secretary of this province."9 William Bradford had claimed lack of knowledge about a critical article in his American Weekly Mercury and blamed a printer for it One member of the council was Andrew Hamilton, who later won acquittal for Zenger.10 Ben Franklin's articles began to appear in the Courant under the name Silence Dogood. Ben wrote: Without Freedom of Thought, there can be no such thing as Wisdom; and no such thing as Publick Liberty, without Freedom of Speech, which is the right of every man, as far as by it, he does not hurt or control the right of another, and this is the only check it ought to suffer.11 He wrote: I am a mortal enemy to arbitrary government and unlimited power. I am naturally very jealous for the rights and liberties of my country; and the best appearance of an Encroachment on those invaluable privileges, is apt to make my blood boil exceedingly. He said, "Whosoever would overthrow the liberty of a nation must begin by subduing the freedom of speech."

16 / Agitation for Press Freedom Ben, as a 16-year old teenager, said, "In those wretched countries where a man cannot call his tongue his own, he can scarce call anything his own." n James Franklin attacked Postmaster Musgrove strongly because Musgrove let him go as printer of the Boston Gazette. n A society of gentlemen called free thinkers by some, or the Hell-Fire Club by others, supplied essays for James Franklin's Courant. A council committee recommended that Franklin no longer be allowed to print the Courant. But he got around the council's order by listing Ben Franklin as publisher and editor. M In making fun of an effort made by the colonial government to catch some pirates, the Courant made a negative reference to Governor Samuel Shute that year and James Franklin was jailed the next day.15 1723 Benjamin Franklin deserted James since he knew James couldn't reveal violation of court orders which included falsely using Ben's name as editor. Ben went south to New York and ultimately to Philadelphia. Thus, Ben escaped his indentured status to his older brother.l6 Andrew Bradford, despite an earlier order by the governor of Pennsylvania, criticized Massachusetts authorities for their actions against James Franklin, calling them bigots, hypocrites, and tyrants.l7 The Boston General Court ordered "That James Franklin be strictly forbidden to print or publish the New England Courant or any pamphlet or paper of the like Nature. Except that it be first supervised, by the Secretary of this Province." James produced one issue in defiance of the order, but a grand jury refused to indict him. l8 Samuel Keimer published an elegy which offended other Quakers. The monthly meeting of the Philadelphia Quakers denounced Keimer and the pamphlet.19 Two men were arrested for derogatory comments about the House of the English Hanover king. The Pennsylvania judges sentenced one man, who confessed, to two hours in the pillory plus a fine. The other one spent two hours and two days in the pillory, was dragged through the streets by a cart and was whipped with 41 lashes and imprisoned.20 1724 A Massachusetts jury refused to indict James Franklin, thus making press controls ineffective.21 1725 In a New England Courant case, the Massachusetts Council ordered that

1700 Through 1759 / 17 newspapers must not print anything of the public affairs of Massachusetts Province relating to the war without the order of the government. The Council instructed that newsletters or newspapers no longer use the phrase "published by authority" because the Council repudiated any official responsibility for the contents of the press. 22 1726 John Checkley, a Boston bookseller, was prosecuted for publishing and selling a pamphlet, A Short and Easie Method with the Deists, which was called a false, scandalous libel. He was convicted, lost an appeal and paid fines before being released. His lawyer, John Read, presented a defense of the jury's right to decide the whole matter of such a libel, predating Fox's libel law of 1742. M Governor Alexander Spotswood of Virginia threatened execution or loss of an arm or leg for disseminators of seditions principles or other insinuations tending to disturb the peace. 1727 William Parks founded the Maryland Gazette in Annapolis, and Samuel Kneeland started the New England Weekly Journal in Boston.24 1728 William Bradford started the Gazette, New York's first newspaper.25 Bradford was jailed for wicked and seditious libel partly due to an examination by Andrew Hamilton, who was Zenger's lawyer in the famous New York trial.26 Benjamin Franklin bought the Pennsylvania Gazette from Samuel Keimer in Philadelphia.27 1730 Benjamin Franklin became a leadingfigurefightingfor freedom of the press. In his "An Apology for Printers," he wrote: The opinions of men are quite variable and the business of printing deals chiefly with these opinions, offending some and pleasing others. He said printers realize that equal space perhaps should be provided for both sides in a dispute. Since printers tend to conform to this plan, it is not the fault of the press that some are offended. If a printer were to publish only things that would please everybody, very little would be published When men differ in opinion, both sides ought equally to have the advantage of being heard by the publick; when truth and error have fair play, the former is always an overmatch for the latter. M 1733 John Peter Zenger began his Journal which published articles written by several persons who attacked government measures. Zenger was arrested in 1734, imprisoned

18 / Agitation for Press Freedom for several months, and tried for libelous publications. The court set bail so high that he could not leave prison Zenger and WiUiam Bradford were the only printers in New York and for a long time carried on a paper war against each other. Bradford condemned Zenger for publishing "pieces tending to set a province aflame, and to raise sedition and tumults" when Zenger was accused of seditious libel.29 Zenger said that the loss of liberty in general would soon follow the suppression of the liberty of the press; for it is an essential branch of liberty, so perhaps it is the best preservative of the whole. Zenger said that the liberty of the press is a subject of the greatest importance, and in which every individual is as much concerned as he is in any other part of liberty.30 1734 James Alexander, a New York attorney, said: It is indeed urged that the liberty of the press ought not be restrained because not only the action of evil ministers may be exposed but the character of good ones traduced. Admit it in the strongest light that calumny and lies would prevail and blast the character of a great and good minister; yet that is a less evil than the advantages we reap from the liberty of the press, as it is a curb, a bridle, a terror, a shame, and restraint to evil ministers; and it may be the only punishment, especially for a time. 3l Benjamin Franklin said liberty of the press does not mean being able to expose a person's private life, religion, or morality, or the conduct of political figures unless the conduct was off-color. He defined liberty to communicate to the public his sentiments, of proposing laws, or detecting "shady" politics. Franklin considered liberty of the press his greatest liberty.32 Andrew Hamilton, Zenger's principal attorney who came from Philadelphia to win the dramatic jury verdict, said in his Summation to the Jury that: It is the best cause. It is the cause of Liberty; and by an impartial and incorrupt Verdict, [you will] have laid a noble Foundation for securing to ourselves, to our Posterity, and our neighbors, That, to which Nature and the Laws of our Country have given us a Right—the Liberty—both of exposing and opposing arbitrary Power [in these parts of the World, at least] by speaking and writing the truth.33 1735 James Alexander, a strong Colonial disciple of the English Cato, was an editor of Zenger's New York Weekly Journal, which was one of the first politically independent newspapers in America. Much of the content was written by Alexander and Lewis Morris, New York lawyers opposed to Governor William Cosby. He wrote: There are some things which could possibly affect the public, and these

1700 Through 1759 / 19 things should be made known; but, by the same token, there are those things which are better left unsaid. The exposure of public wickedness is the duty of every citizen and cannot be considered a libel because such information is in the public interest.34 Alexander was one of the first Americans to develop a philosophy of freedom of the press. Letters concerning freedom of the press and the nature of libel were written by Alexander to Zenger. He was concerned mostly with libels against the people as a whole. Alexander wrote the trial report which made Zenger and Andrew Hamilton appear as heroes. Gouverneur Morris called Andrew Hamilton "the Day Star of the American Revolution" for service in the cause of freedom of the press. In 1735, the city of New York honored Andrew Hamilton for his handling of the Zenger case.35 Lewis Timothy editorialized in his South Carolina Gazette that: The liberty of the press is the most unlucky scourge that can hang over the heads of the corrupt and wicked ministry; and when this essential branch of our liberties is either attacked, abridged, or taken away from us, every man may certainly predict slavery and ruin to his fellow citizens. Neither do I see how any restraint can be put upon the press in a nation that pretends to liberty, but just sufficient to prevent men from writing either blasphemy or treason. * Zenger was imprisoned for printing several "seditious libels" in four issues of his New York Weekly Journal. The New York House of Representatives would not concur in prosecuting Zenger, so the governor ordered the mayor's court to handle the matter; it refused. At the next term of the Supreme Court, its grand jury found the charge against Zenger invalid. The attorney-general filed an information against Zenger and a commission of judges dismissed Zenger's lawyers, James Alexander and Lewis Morris. Zenger obtained other lawyers, including Andrew Hamilton, the attorney who convinced the jury to consider the truth of the material to determine if it were libelous. This step was not allowed for in English law but the jury decided Zenger was not guilty.37 The Zenger defense was based on concepts vital to the libertarian philosophy of free press. These included the rights to criticize officials and to use truth as a defense. The New York Weekly Journal claimed that libels cannot be defined and that freedom of the press should mean that every man ought to have a liberty to communicate his sentiments freely to the public on political or religious points without the fear or danger of being punished.38 1736 Colonial legislative bodies were fierce oppressors of the Colonial press.

20 / Agitation for Press Freedom 1737 A group of four essays written and published by James Alexander in Franklin's Pennsylvania Gazette and several of his essays published in Zenger's New York Weekly Journal were sane of the best libertarian statements published in America in the 1700s. Alexander said: "These abuses of freedom of speech are the excrescence of Liberty. They ought to be suppressed, but to whom dare we commit the doing of it? An evil magistrate, entrusted with a power to punish words, is armed with a weapon the most destructive and terrible. Under the pretense of pruning off the exuberant branches, hefrequentlydestroys the tree." He said that "freedom of speech is a principal pillar in a free government: when this support is taken away, the constitution is dissolved, and tyranny is erected on its ruins."40 Alexander believed that constitutional government and freedom of the press cannot survive without each other. He said that "whoever attempts to suppress either of these (liberty of speech and liberty of press), our natural rights, ought to be regarded as an enemy to liberty and the (English) constitution." His/I BriefNarrative of the Case and Tryal of John Peter Zenger which Zenger published in 1736 became a widely-known source of libertarian thought in the colonies and in England in the Eighteenth Century. Two attorneys of the king produced a refutation of the concept that truth could be a defense against a libel charge; since truth multiples the libel. William Bradford, Zenger's competitor, re-published this article but Benjamin Franklin published Alexander's rebuttal of it in his Pennsylvania Gazette. 1739 Charles Chauncey, a prominent clergyman of Boston, wrote a strong sermon on liberty of conscience, but endorsed banning licentiousness and abuses of the press which he did not define.4l 1740 In South Carolina, famous evangelist George Whitfield and two other persons were accused of libeling the established church, but the case never went to trial.42 1741 Andrew Bradford produced America's first magazine which he called The American Magazine txA Monthly View of the Political State of the British Colonies. Three days later Benjamin Franklin produced his magazine called The General Magazine and Historical Chronicle for all the British Plantations in Americas. Neither of these Philadelphia magazines survived.43 Thomas Fleet argued with many preachers in Boston who complained about his

1700 Through 1759 / 21 Evening Post. Fleet fought against this pressure and said, "The next strike may probably be at the Liberty of the Press, and what a fine introduction this will be to Popery we leave our readers to judge." He published a batch of children's poems recited by his mother-in-law, Mrs. Elizabeth Goose. He was jailed for fussing at the General Assembly. u 1742 The Massachusetts Council ordered the attorney general to file an information against Thomas Fleet for publishing in his Boston Evening Post a scandalous and libelous paragraph about Sir Robert Walpole. When this happened, Fleet was released from Prosecution.45 1744 Judge Elisha Williams, speaker of the Connecticut House and a former president of Yale, pled for private judgment not controlled by civil authority for "Matters of Conscience and all other issues." He supported "the Right that everyone has to speak his sentiments openly concerning such matters as affected the goal of the whole." ** 1745 A Charleston, SC, jury refused to indict editor Peter Timothy for publishing sarcastic remarks about Gov. James Glen's rules about Sabbath observation. The jury said the request for prosecution was "destructive of the liberty of the press, a privilege we enjoy, and which has been so justly contended for by our ancestors and we hope will be preserved to our latest posterity."47 Except for the trial of a New Yorker for "singing praises of the Pretender" and a trial which ended in an acquittal in South Carolina, the Zenger case was the last of its kind tried by royal judges. ** 1747 Governor George Clinton of New York ordered James Parker, the colony's official printer, not to publish the assembly's remonstrance against the governor. The assembly overruled Clinton "to preserve liberty of the press." The General Assembly for years had ordered that its votes couldn't be published without prior approval, but Clinton criticized such a vote and the resulting squabble caught Parker in the middle of a fight.49 1750 Jonathan Mayhew in Discourses said that submission is not required to all who bear the title of rulers, but only to those who actually perform the duties of rulers by exercising a reasonable and just authority for the good of human society. His beliefs strongly influenced James Otis, Joseph Quincy, Sam Adams, and John Adams. Thomas Hollis was effective with his correspondence to Mayhew and Andrew Elliot to aid the influences leading to the Revolution. *°

22 / Agitation for Press Freedom William Moore was convicted of libeling the provincial constitution and the Assembly by the Bar of the Pennsylvania Assembly and jailed for his Address to the Governor. Professor William Smith, provost of the College and Academy in Philadelphia, also was convicted for publishing it in a German language newspaper.51 William Parks, publisher of the Virginia Gazette at W7illiamsburg, was tried for printing a libel against an honorable burgess. Parks begged to have official records examined; they revealed the published material was true and that the burgess had once been convicted of stealing sheep. Parks was exonerated.52 1751 Efforts to punish Peter Timothy for his pamphlet critical of the handling of Indian affairs failed in South Carolina.53 1752 Ben Franklin was appointed deputy postmaster general jointly with William Hunter of Virginia, also a publisher. These publishers established weekly mail posts and cut delivery time in half. They arranged easy mailing for publications. Franklin presented his plan for the union for the colonies to the Albany Congress.54 1753 Daniel Fowle was arrested while eating dinner by order of the Massachusetts General Assembly and its speaker, Thomas Hubbard, on suspicion of having printed a pamphlet, Monster of Monsters, which reflected upon some of the house members. After an interrogation he was jailed. Two days later Daniel was told he could leave the jail but he refiised until the Assembly liberated him. He was released and the charges dropped He printed A Total Eclipse of Liberty which told his side of the episode. He was so disgusted by the Massachusetts government that he moved to New Hampshire and began publication of the New Hampshire Gazette in 1756.55 The New York Assembly censored Hugh Gaine for publishing its proceedings in his New York Mercury. Gaine apologized and was censored,fined,jailed, and warned when released a day later. * William Livingston, spokesman for mid-century America libertarian theory, was a proponent of freedom of the press in his Use, Abuse and Liberty of the Press. He said that the press served the greatest of purposes in spreading knowledge. Before the art of printing was discovered "the progress of Knowledge was slow because the Methods of diffusing it were laborious and expensive."57 1754 Benjamin Edes and John Gill began a printing house in Boston and the Boston Gazette which became a leading pro-Revolutionary War publication. Their paper attacked the Stamp Act, the Boston Massacre, the Tea Tax, the closing of the port of Boston, the letters of Governor Thomas Hutchinson, the measures of the provincial

1700 Through 1759 / 23 government, and the conduct of British soldiers.58 The Massachusetts General Assembly levied a half-penny tax on every copy of a newspaper, but it was discontinued after a year because it was so unpopular. The press in Massachusetts became somewhat free of legal restraints.59 1755 Passage of a Massachusetts Stamp Act made the first distinction between a newspaper and a pamphlet. This act temporarily taxed the Boston Gazette out of business.60 This stamp act aroused great opposition but when the New York Assembly levied a half-penny tax in 1756 on newspapers which simply added a charge to subscribers who did not object to the tax. 1756 James Parker and William Weyman were arrested for publishing a critical essay by Hezakiah Watkins. To be released, the two identified Watkins as the writer to the New York Assembly. Watkins was found in contempt and was arrested and fined, but he contritely begged his way out ofjail. Parker and Weyman used the front page of the New York Post Boy to extol the role of the press to freely spread knowledge for the common people and to ward off tyranny.61 1758 Benjamin Franklin and Hunter established the practice of mailing newspapers at the post office. They required that subscribers pay postage of nine-pence sterling per year for every 50 miles or the fraction thereof which a newspaper was carried by a post rider. Papers exchanged between printers were carried free.62 The Pennsylvania Assembly complimented David Hall for his report published in The Pennsylvania Gazette about the Assembly's effort to punish a justice of the peace. But it jailed William Smith for arranging for publication of the report in a German language newspaper. Hall, the Assembly said, had guarded against "any encroachment on so useful a Privilege as the Liberty of the Press."63 Samuel Townsend was found guilty of a high misdemeanor by the New York Assembly for sending it a letter seeking relief for refugees on Long Island. He was imprisoned, wrote an abject apology, and was released with a reprimand. M 1759 James Parker, in opposition to a proposed stamp tax on newspapers in New York, said, "When Liberty truly reigns, everyone hath a Privilege of declaring his Sentiments upon all topics with the utmost Freedom, provided he does it with proper Decency and a just Regard to the Laws."65 The Privy Council in England ruled that colonial assemblies possessed no powers of imprisonment for seditious contempt. This ruling grew out of a long prosecution of

24 / Agitation for Press Freedom Judge William Monroe and William Smith, president of the University of Pennsylvania. They were arrested for a newspaper account critical of the upper house of the Pennsylvania Assembly. The assembly voted them guilty, then sent them through a kangaroo court to get a judicial verdict. Smith fled to England to plead his case with the Privy Council which ruled that the item was libelous but not actionable, since it had been published after the assembly adjourned. a

Chapter 4

THE PATRIOTS AND THEIR REVOLUTION 1760 THROUGH 1786 General Events and Perspectives 1763—Most Colonials believed England's traditional constitution was the most perfect one that human powers with finite wisdom had contrived for the preservation of liberty and the production of happiness.l 1769—Andrew Eliot said that the only hope was in an American Bill of Rights.2 1774—The first Continental Congress met in Philadelphia and urged civil disobedience to English laws. 3 1774—Philip Livingston said legal rights are those rights we are entitled to by eternal laws of right reason.4 1775—The Continental Congress resolved in 1775 that any member who divulged any part of its proceedings without consent was to be expelled and deemed an enemy to the liberties of America.5 1775—Alexander Hamilton said that: The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by a mortal power.6 Later he said, "Civil liberty is only natural liberty, modified by the sanctions of civil society."

26 / The Patriots and Their Revolution 1779—Thomas Paine had to resign as secretary to the Committee on Foreign Affairs for his Pennsylvania Packet revelation that the United States had secretly accepted aid from France.7 1783—Massachusetts discontinued slavery. 1785—Delegates from five states urged the Continental Congress to call a constitutional convention in Philadelphia.8 1785—James Madison was determined to defeat the religious assessments bill in the Virginia Assembly, so he wrote a remonstrance which helped defeat it. He advocated man's natural right to freedom of conscience.9 Events Leading to the American Revolution 10 From 1763 through 1775, the English ministers and Parliament and their colonial administration indulged in a series of repressive measures that infuriated the colonials. These included: October 1763—A proclamation limiting expansion to the Allegheny foothills. April 1764—The Sugar and Currency Acts. March 1765—The Stamp Act (repealed in 1766) and the Quartering Act. March 1766—The Declaratory Act. June 1767—The Towshend Revenue Act (repealed in 1770). May 1773—Granting a monopoly to the East India Tea Company. March 1774—The Intolerance Acts, including the closing of the Boston harbor. February 1775—The Fisheries Act. Reactions by the colonials to the British repressive measures included: May 1765—The House of Burgesses resolved that only Virginians could tax Virginians. August 1765—Boston crowds erected Liberty trees and poles as part of their demonstrations. October 1765—The Stamp Act Congress was organized. November 1765—The Boston Pope's Day demonstrations. November 1767—John Dickinson's "Letters from a Farmer" condemned the Towshend Acts. June 1768—Boston crowds condemned smuggling charges against John Hancock. In March 1767, the British dropped the case. August 1768—Non-Importation boycotts of English goods existed. March 1770—Demonstrations led to the Boston Massacre when five colonials were killed. May 1771—British militia defeated the Regulators faction in North Carolina. December 1773—The Boston Tea Party. September 1774—The Resolves of Suffolk County, Mass., saying the Intolerable Acts could be ignored were adopted by the Continental Congress. April 1775—The Battles of Lexington and Concord.

1760 Through 1786 / 27 May 1775—The Continental Congress invited Canada to join the struggle in the Quebec declaration. July and August 1776—The Declaration of Independence was finalized. Freedom of Expression 1760 Briton Hammond, a Boston Black man, wrote and published his biography.

u

James Otis contended that an act of Parliament against national equity was void.n 1761 Jupiter Hammond, a slave living in Long Island, published several poems. In 1770, Phyllis Wheadey, a Boston slave, published a well-received poem, "An Elegiac Poem on the Death of George Whitefield." Later she had a volume of her poetry published in England.13 1763 James Johnston founded his Georgia Gazette so that all 13 of the colonies had printing facilities available.,4 An inflammatory handbill charging the New York Assembly with a betrayal of its trust was issued for the Sons of Liberty by Alexander McDougall, who was arrested on charges of seditious libel. He served three months in jail after a widely publicized trial. The charges against him were dropped when the Assembly ended its session. He was identified by James Parker as the author of a handbill attacking the Assembly's decision to give a bill of credit to English troops. Parker felt threatened, because he was later identified as the promoter of the handbill. McDougall refused to ask for a pardon for "To the Betrayed Inhabitants of New York." l5 1764 Benjamin Edes and John Gill published The Boston Gazette without a license and made it a radical publication for the Sons of Liberty. It attacked vigorously the English Stamp Act. 16 In a prospective issue, the Hartford Courant proclaimed: Of all the Arts which have been introduced amongst mankind for the civilizing of Human-Nature, and rendering Life agreeable and happy, none appear of greater Advantage than that of Printing; for hereby the greatest genius's of all ages and Nations live and speak for the benefit of future generations. Was it not for the Press we should be left almost entirely ignorant of all those noble Sentiments which the Antients were endowed with. By this Art, Men are brought acquainted with each other, though never so remote as to Age or Situation; it lays open to view the Manners, Genius, and Policy of all nations and Countries and faithfully

28 / The Patriots and Their Revolution transmits them to posterity.1? 1765 John Adams, in his Dissertation on the Cannon and the Federal Law wrote: Let us dare to read, think, speak, and write. Liberty cannot be preserved without a general knowledge among the people, who have a right, an indisputable, divine right, to that most dreaded and envied kind of knowledge. I mean of the character and conduct of their rulers. But none of the means of information are more sacred, or have been cherished with more tenderness and care by the settlers of America, than the press. Be not intimidated, therefore, by any terrors, from publishing with the utmostfreedomwhatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretense of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice. The colonial cause was founded in principle so indisputable in the moral law, in the revealed law of God, in the true constitution of Britain, and as well as of the whole body of the people of America, that it rejoices my very soul. 18 William Bradford III, publisher of the Pennsylvania Journal, reacted to the Stamp Act with, "Adieu to the liberty of the press." The Pennsylvania Journal and the Maryland Gazette announced that they would not appear again unless the Stamp Act was lifted; nevertheless, they pubUshed regular issues leaving out customary titles and substituting "Recent Occurences" or "No Stamped Paper to be Had." Benjamin Franklin did the same for his Pennsylvania Gazette.19 Governors and judges found their efforts to curb the growing boldness of newspapers limited by the unwillingness of grand juries to indict for critical comments. Lt. Governor Cadwallader Colden of New York said, "I agree with the Gentlemen of the Council that considering the present temper of the people, that this is not the proper time to prosecute the printers and publishers of the Seditious Papers." Colden called John Holt a liar after Holt made the New York Gazette a propaganda publication against the crown.20 The Constitutional Courant was a political attack on the Stamp Act. When New York colonial members tried tofindout where it had been printed, Lawrence Sweeney replied, "at Peter Hassenever's iron works." Thereafter, underground publications were said to have been produced by the ironworks.21 Andrew Eliot in an election sermon proclaimed that "when tyranny is abroad submission is a crime." Assembled before him to hear such rhetonc were the magistrates of Massachusetts.22 Richard Henry Lee dressed his slaves in "Wilkes" costumes and marched them

1760 Through 1786 / 29 to a hanging of the stamp minister and stamp collector in effigy. (Wilkes was a popular libertarian English dissident.) The Stamp Act was repealed largely because of the united opposition to it by the newspapers. u The English Stamp Act alienated colonial lawyers and journalists. All legal documents and instruments in writing were to use stamped paper purchased from agents of the English government; offenses against the act were to be tried in any royal, marine, or admiralty court in any part of the colonies without a jury. The Boston Gazette was the first newspaper to publish a letter attacking the Stamp Act. Newspapers were required to use stamped paper. Benjamin Franklin headed an unsuccessful delegation to London which tried to get Parliament to repeal the Stamp Act Newspapers encouraged colonial non-compliance with British law because of the stamp tax.24 Isaiah Thomas published a paragraph for the Halifax Gazette in Nova Scotia reporting the people were disgusted by the government if they presented such comment.25 The sheriff attempted to force information from Isaiah Thomas, but he refused to cooperate. He cut off all the stamps on a year's supply of paper so the Gazette could no longer be printed on stamped paper.26 New York authorities were afraid to prosecute newspapers attacking the Stamp Act. 1766 William Bollan of Massachusetts and its colonial agent in London wrote The Freedom of Speech and Writing upon Public Affairs. Bollan called liberty of the press the forerunner of exercising the rest of our legal rights. His theme was that the accused in a criminal libel trial should have the right to plead truth as a defense, while the jury should have power to judge questions of falsity and malice. It contended that all things published for the purpose of informing the public of the public welfare are worthy of being in print.27 Daniel Fowle won an award of 20 pounds from the Massachusetts House for his imprisonment for having published a humorous satire on the debates in the house titled The Monster of Monsters. The humorless house tried to collect a fine after he had moved to New Hampshire. He had won a 31 pound, 7 shilling award in 1765 from the General Court. M 1767 Publication ofLetters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies, a series of newspaper articles, was published in the Pennsylvania Chronicle. These were written by John Dickinson on the unconstitutionality of tax duties; he regarded Parliamentary taxes as an invasion of the rights of a free-born

30 / The Patriots and Their Revolution Englishman.29 A Freeborn American claimed that the society whose laws least restrain the words and actions of its members is most free in an article in the Boston Gazette and Country Journal. The Gazette also declared that "man, in a state of civil society, that right is limited by the law; going beyond that law could be criminal and even destroy liberty."30 Chief Justice Thomas Hutchison of Massachusetts told the press not to meddle with his court. He said: The liberty of the Press is doubtless a very great Blessing, but the Liberty means no more than a freedom for everything to pass from the press without license. Unlicensed printing was never thought to mean a Liberty of reviling and calumniating all ranks and degrees of man with impunity, all authority with ignomity. To carry this absurd notion of the Liberty of the Press to the Length some would have it—to print everything that it libelous and slanderous—is truly astonishing and of the most dangerous tendency.3I James Pride infuriated the Virginia House of Burgesses by serving a writ on one of its members. He failed to answer a summons, was imprisoned, wrote a letter to an editor, was censured for that, given stiffer imprisonment, but managed to escape further punishment when the governor prorogued the Assembly.32 William Weyman and James Parker became enemies. Weyman accused Parker of suppressing Weyman's New York Gazette by refusing to deliver it while Parker was Postmaster.33 1768 Samuel Adams wrote that nothing was so justly terrible to tyrants and their tools and abettors as afreepress and that The Gazette had shown people their dangers and their remedy.34 The Boston Gazette published an unsigned letter written by Joseph Warren that attacked Governor Francis Bernard and held him up as a hated enemy of the province. The council said that this was seditious libel placing the governor in the most odious light. But the lower house would not turn Warren over to a grand jury, saying that "The liberty of the press is a great bulwark of the liberty of the people; it is, therefore, the incumbent duty of those who are constituted the guardians the People's Rights to defend and maintain it." Governor Francis Bernard got Hutchinson to indict for seditious libel, saying that formerly no man could print his thoughts without a license. When this restraint was taken off then was the true liberty of the press. Every man who prints, prints at his peril." But Hutchinson could never get an indictment acted upon.35 An editorial in The Pennsylvania Gazette said, "However little some may think

1760 Through 1786 / 31 of common newspapers to a wise man they appear the ark of God for the safety of the people. * Josiah Quincy, Jr. was tried for seditious libel, but the jury found him not guilty. Justice Hutchinson found he could only make speeches about the dangers of libel since it was apparent he could not punish Quincy in the courts.37 1770 The Boston Gazette with its patriot propaganda reached a circulation of 7,000. The governor bewailed that seven-eighths of the people read none but this infamous newspaper. Writers for the Gazette included Samuel Adams, John Adams, Joseph Warren, Josiah Quincy, Thomas Cushing, Samuel Cooper, James Otis, and John Hancock. These men met in the Gazette office "to cook up paragraphs and heat up the political engine." M A John Adams essay in the Gazette said: The stale impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much more to your honor. Be not intimidated. Benjamin Franklin said: Unlike printers, the shoemaker, the blacksmith, the carpenter or the man of any other trade, may work indifferently for people of all persuasions without offending any of them. Plus the merchant may buy and sell with Jews, Turks, Hereticks, and people with all sorts of backgrounds and get moneyfromall of them without giving offense or suffering the least censure or ill will.39 Phillip Furneaux challenged Blackstone's law theories including the common law restraints on expression of religious and irreligious opinion. He believed that the expression of opinions should be entirelyfree.No "bad tendency" test of words should be applied and punishment should only be for overt actions. * Alexander McDougall, a member of the Sons of Liberty, was jailed for 82 days by the New York Assembly for breach of privilege for his answers concerning a seditious libel charge which had been dropped.4l John Mein was forced to flee to England by Patriots outraged by his attacks on their leaders in his semi-weekly publication, the Boston Chronicle. He shot a mob member and was hanged in effigy, assaulted on the street, and had to have the protection of British soldiers.42 In North Carolina, the Assembly was offended by a critical article sympathizing with the Regulators, a group of debtor farmers. The Assembly accused a member, Herman Husband, of writing the article. In the ensuing argument he was expelled and jailed for two months but the grand jury refiised to indict him.43

32 / The Patriots and Their Revolution "Wilkes and liberty" was a popular cry among the colonists. The South Carolina Assembly gave John Wilkes 1,500 pounds to pay his debts and get his London publication started again. u 1771 An essay Isaiah Thomas wrote in The Spy caused Governor Hutchinson to summon Thomas before his Council. Thomas refused to go to the Council. Hutchinson ordered the attorney general to prosecute him at common law, but the grand jury refused. An attempt to try him in a nearby county also fizzled.45 1772 Sam Adams organized his committees of correspondence, which had 80 centers in the colonies, from Boston to Savannah. (Meanwhile, The Boston Gazette openly discussed an American Revolution from British rule.) * Andrew Kippis said, "The true and proper notion of an overt act is an act done with malicious intention, an act criminally injurious to the public, and which can be proved to be such by just and legal evidence." Neither preaching nor publications could constitute an arrest act according to Kippis.47 1773 A grand jury would not indict John Carter, editor of The Providence Gazette in Rhode Island for criticizing a member of the Assembly's Committee on Correspondence. The Gazette said, "This very extraordinary attempt to destroy the Liberty of the Press became a matter of great expectation, and did not fail to alarm the Friends of Freedom, but their Apprehensions however soon subsided, the honest Jury having returned the Bill Ignoramus." * Nathaniel Mills and John Hicks, publishers of The Massachusetts Gazete and The Boston Post Boy, were handsomely paid by the British for favorable Tory articles. James Rivington published the pro-Tory New York Gazetteer which became one of the most widely-circulated newspapers in the colonies.49 The Council of South Carolina jailed Thomas Powell, editor of The South Carolina Gazette for breach of privilege for protesting some of the Council's actions. The Commons House of the Assembly released him because the imprisonment was illegal and oppressive. The Gazette said the Commons House had defeated the most violent attempt that had ever been made in South Carolina upon the Liberty of the Press. The Gazette said freedom of the press was one of the most valuable "blessings that can be enjoyed by Britons, it being the best alarum to rouze us against the Attacks of Arbitrary Power." * After release he issued a special edition repeating the episode which infuriated the legislature. The Council ruled him guilty of seditious libel, but the legislature released him.

1760 Through 1786 / 33 1774 The Continental Congress passed the Quebec Declaration in an effort to enlist Canadian support. It stated: The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officials are shamed or intimated into more honorable and just modes of conducting affairs.51 The Quebec Declaration rejected the English concept of speech and press control, and declared freedom of the press was a natural right. Freedom of the press was declared a natural right. Freedom of the press was thus declared explicitly a fundamental trust of civil liberty by a group of public men for the first time in America. John Gill was imprisoned 29 days by the British for printing treason, sedition, and rebellion.52 Thomas Jefferson's pamphlet, A Summary View of the Rights of British America, presented resolutions for a Virginia colony convention that led to libertarian views of government and a libertarian press philosophy.53 Isaiah Thomas, editor of The Massachusetts Spy, apparently made an effort to be neutral and impartial in the political character of his columns and to publish communication from each side. His motto, "Open to all parties, but influenced by none" suggested impartiality, but it was evident that he was a Whig. The Massachusetts Spy and Thomas' Boston Journal adapted a cartoon published several years earlier of a dragon representing Great Britain with a snake cut in pieces representing the colonies. Its legend was "join or die."54 1775 Robert Bell, a Philadelphia printer and bookseller, published Thomas Paine's Common Sense pamphlet, using scraps of various paper because of scarcities. Paine later worked as a clerk for Bell.55 The Boston Gazette and Post Boy, a newspaper loyal to the crown, gave up to public opposition, but the Newsletter continued until 1776 as the only loyalist publication. x The Committee of Inspection for Newport, R.I., argued freedom of the press meant diffusion of liberal sentiments but not wrong sentiments.57 Benjamin Franklin said, "The liberty of the press is indeed essential. Whoever

34 / The Patriots and Their Revolution would overthrow the liberty of a nation must begin by subduing the freeness of speech.58 Patrick Henry incited the Virginia Convention with his famous "Give me liberty or give me death" speech.59 John Holt, editor of the New York Journal, changed the snake cartoon by uniting its parts and printing on its body the words, "United now, alive and free, Firm on the basis of Liberty, shall stand, and thus supported, ever bless our land till Time becomes Eternity." * The Sons of Liberty, led by Alexander McDougall and Isaac Sears, destroyed James Rivington's printing shop because he published the pro-Tory New York Gazette. Rivington was hanged in effigy in New Brunswick when Patriots began to resent his publication of Tory arguments. Although his newspaper was well-edited and written, he suffered further vandalism and beatings before he returned to England. Eventually, Rivington returned to the United States after the Revolution.6I Thomas Paine said, "There is nothing which obtains so general an influence over the manners and morals of a people as the press; from that as from a fountain, the streams of vice and virtue are poured forth over a country."62 More than 400 pamphlets discussing the clash between the colonies and England appeared between 1750 and 1776 and as many as 1500 had been published by 1783. The number of newspapers published on the seaboard grew to 38 with 23,300 subscribers. They were crowded with arguments and counter-arguments appearing as letters, official documents, extracts of speeches, and sermons. Other media included political broadsides, almanacs, pamphlets, and small booklets.63 Two Tory newspapers in Pennsylvania were founded: The Pennsylvania Evening Post by Benjamin Towne and the Pennsylvania Ledger by James Humphrey. ** 1776 John Adams wanted newspapers to pass a loyalty test and take a loyalty oath for independence so the opposition press could produce no more seditious or traitorous speculations.65 Robert Bell said: If new modes of government, are either in reality, or in appearance, approaching towards the inhabitants of America; it is peculiarly necessary on those extraordinary occasions, that the liberty of the press should be freely exerted, for; if in these changes we do not fully retain all our happy privileges, but weakly suffer any restrictions or curtailing of liberty to advance upon us with new establishments, it will afterwards be next to impossible to regain the desirable possession. **

1760 Through 1786 / 35 The Committee of Inspection of Newport, R.I., proclaimed: But when a Press is incessantly employed and prostituted to the vilest uses; in publishing the most infamous falsehoods; in partial of false representations of facts; in fermenting jealousies, and exciting discord and disunion among the people; in supporting and applauding the worst of men, and worst of measures; and in vilifying and caluminating the best of characters, and the best of causes; it then behooves every citizens to discountenance and discourage every such licentious, illiberal, and prostituted press.67 The Continental Congress declared that the colonies had five rights: representative government, trial by jury, liberty of person, easy tenure for land, and freedom of the press. ** The Continental Congress was gentle toward pro-British publications even though there were treason laws. It resolved that uninformed people deceived and drawn into erroneous opinions respecting the American cause should be treated with kindness and attention and their errors viewed as proceeding rather from a want of information than from want of virtue or public spirit. Patriot writings and the proceedings of the Congress should be distributed to elucidate the merits of the American position. But it soon called upon states to pass laws to prevent people from being deceived and drawn into erroneous opinions. Connecticut did so in 1776.69 Richard Draper inherited the Boston News-Letter when his father died. It became a Royalist paper and disappeared early in the Revolution at the age of 72. 70 Daniel Fowle published an article against the trend toward American independence in January in his New Hampshire Gazette. The Provincial Assembly censured him and he promptly discontinued his paper.71 Benjamin Franklin used the Virginia Declaration of Rights as the basis of the bill of rights he wrote for the Pennsylvania constitution which provided that "the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not be restrained." Pennsylvania accepted common law restraints on the press.72 Benjamin Franklin favored as much discussion as possible on public measures and political opinions but recommended harsh treatment for anyone caluminating the government or affronting its reputation.73 Norfolk officials protested seizure of printing equipment owned by John Hunter Holt, editor of The Virginia Gazette, by Lord Dunsmore, governor of Virginia, who believed Holt was "poisoning the minds of the people against England, and in exciting in them a Spirit of Rebellion and Sedition."74

36 / The Patriots and Their Revolution Francis Hopkinson, a signer of the Declaration of Independence, said that if the channels of information were abused with a press that became an engine for sowing dissension, false alarms, or undermining the government, it should "tear from its bosom the serpent that would sting it to death." Congress urged states to prevent people from being deceived.75 Samuel Loudon, editor of the New York Packet, believed all sides should be heard, so he agreed to print a loyalist pamphlet replying to Paine's Common Sense. He advertised it. When MacDougall, Scott, Sears, and John Lamb, all leaders in the Sons of Liberty, read the ad they organized vigilantes who broke into Loudon's home at night, destroyed the printing frames, and burned 1500 printed impressions and the manuscript. The vigilantes sent a communique to all printers saying: Sir, if you print, or suffer to be printed on your press, anything against the rights and liberties of America, or in favor of our inveterate foes, the King, Ministry, and Parliament of Great Britain, death and destruction, ruin, and perdition shall be your portion. Signed, by order of the committee of tarring and feathering legion.76 James Madison said, "I wish we had Rivington (The New York Tory editor) and his ministerial Gazetters for 24 hours in this place. Execrable as their designs are, they would meet with adequate punishment."77 Thomas Paine's Common Sense essay appeared in Robert Aitken's Pennsylvania Magazine', it was Common Sense that alerted the American public to face the idea of separation from Great Britain and prepared the populace for the Declaration of Independence. Thomas Paine's first Crisis paper was written and published in the Pennsylvania Journal.78 The last attempt by a royal governor to prosecute a Patriot paper bogged down in the South Carolina legislature when the House wouldn't join the Senate to punish Thomas Powell of the South Carolina Gazette.79 The Virginia Declaration of Rights said: "Freedom of the Press is one of the great bulwarks of Liberty and can never be restrained but by Despotick governments." w The Virginia Bill of Rights incorporated the first specific guarantee of freedom of the press in America. The Jefferson draft for the proposed constitution had no declaration ofrightsbut George Mason, James Madison, and the legislature added the rights which provided for freedom of the press. Virginians thereafter worked for such protection on the federal level. 8l 1777 William Goddard controlled the Maryland Journal, which displeased Baltimore Whigs because of two articles explaining both sides of a purported English offer to end the war. The Whig Legion club demanded that Goddard leave Baltimore. The

1760 Through 1786 / 37 legislature condemned the club and asked the governor to provide any needed protectioa Goddard again infuriated the Whig club with an article written by General Charles Lee. Goddard was mobbed and cursed several times. But, by the time he was ready to move from Baltimore, he and the Whig Legion were onfriendlyterms. w Isaiah Thomas, in The Massachusetts Spy, wrote: Should the liberty of the press be once destroyed, farewell the remainder of our invaluable rights and privileges! We may expect padlocks on our lips, fetters on our legs and only our hands at liberty to slave for our worse than Egyptian taskmasters—or fight our way to constitutional freedom. w The Virginia Religious Liberty statute declared not only the right of liberty to profess religion and to worship God, but also the right of liberty of opinion, speech, and of the press in the subject of religion, and eliminated the English common law test of supposed bad tendency. w George Washington encouraged the Patriot press. He aided in the establishment of the New Jersey Gazette so that his army might have a newspaper to read in the winter of 1777.85 George Washington complained: It is much to be desired that our printers were more discreet in their publications. We see in almost every paper, proclamation or accounts transmitted by the enemy of an injurious nature. If some hint or caution could be given them on the subject, it might be of material service. M 1778 Benjamin Franklin said: Few of us have distinct ideas of the nature and extent of freedom of the press. If it means the liberty of affronting, culminating, and defaming one another, I, for my part, own myself willing to part with my share of it when our legislators shall please so to alter the law, and shall cheerfully consent to exchange my liberty of abusing others for the privilege of not being abused myself. w WiUiam Goddard escaped being hanged by a Baltimore mob who forced him at gunpoint to repudiate an article defending General Charles Lee and criticizing General Washington. When Maryland provided him with protection he retracted the forced apology. w 1779 The Continental Congress refused to interrogate John Dunlop, publisher of The Pennsylvania Packet, for publishing Dr. Benjamin Rush's views that Congress could not handle currency problems or deal with government fraud and corruption. Congress

38 / The Patriots and Their Revolution turned down this Elbridge Gerry request and applauded liberty of the press. " 1781 James Adams wrote: "There is not in any nation of the world so unlimited a freedom of the press as is now established in every state of America, both by law and practice." * 1782 The system of the English government financing colonial newspapers in some of the colonies ended, but in 1782 it was briefly revived as the American Revolution entered its final months. Thomas Jefferson in his Notes on the State of Virginia said that offensive speech neither picks my pocket nor breaks my leg. He also said, "Reason and free inquiry are the only effective agents against error."91 A Pennsylvania grand jury refiised to indict Eleazer Oswald for printing criticism of Chief Justice Thomas McKean because the jury had an unshaken zeal for the liberties of the country. n 1783 Jefferson distinguished between religious and political opinions. The former he exempted from prosecution, except when the participating principal broke into overt acts of crime; the latter he would have subjected to prosecution to rectify errors of fact, rather than merely expose them to truth and reason.93 Benjamin Towne started America'sfirstdaily newspaper by changing his Weekly Post to a daily publication.94 George Washington, in his address to the officers of the Army in Newburgh, N.Y., March 15, said: If men are to be precluded from offering their sentiments on matters which may involve the most serious and alarming consequences that can involve die consideration of mankind, reason is no use to us, the freedom of speech may be taken away, and dumb and silent we may be led like sheep to the slaughter.95 1784 Benjamin Russell's Columbian Centinel became the chief Federalist newspaper. The Federalists controlled nearly all the newspapers. Russell wanted President Washington to be addressed as "His Majesty, the President." * 1785 Matthew Carey was the son of a rich Dublin contractor. He began publishing books in Philadelphia after fleeing from Ireland's Newgate Prison, where he served

1760 Through 1786 / 39 a month for his revolutionary weekly, the Freeman s Journal. Earlier radical attacks on the British government had forced him to flee to France. There he met Benjamin Franklin, who maintained a small press while serving as ambassador to France. He trained Carey who eventually became a wealthy publisher and banker.97 William Goddard received the papers of General Charles Lee and wanted to publish them. Lee was a severe critic of President Washington. Goddard wrote Washington to see if he would like to edit the attacks made by his old rival. Washington replied: I can only say that your own good judgment must direct you in the publication of the manuscript papers of General Lee. I can have no request to make concerning the work. I never had a difference with that man, but on public ground; and my conduct toward him upon this occasion was only such as I conceived myself indispensibly bound to adapt in the discharge of the public trust reposed in me. If this produced in him unfavorable sentiments of me, I yet can never consider the conduct I pursued with respect to him, either wrong or improper: moreover, I may regret that it may have been differently viewed by him, and that it excited his censure and animadversions. Should there appear in General Lee's writings anything injurious or unfriendly to me, the impartial and dispassionate world must decide how far I deserved it from the general tenor of my conduct. w The Massachusetts legislature passed a stamp act levying duties on legal documents, commercial papers, newspapers, and almanacs. Public outcry forced the legislature to rescind the action. The following year the legislature taxed advertisements. Isaiah Thomas suspended the Massachusetts Spy in protest of this improper restraint for two years. He published the Worchester Weekly Magazine instead. The Massachusetts Centinal called the stamp act, "the first stone in the fabric of tyranny. It would end freedom of the press." The act was repealed in 1788 when The Massachusetts Spy exalted: Heaven grant that the Freedom of the Press, on which depends the freedom of the people, may in the United States be ever guarded with a watchful eye, and be defended from shackles until the trump of the celestial messenger shall announce the final dissolution of all things. " Samuel Miller of Massachusetts said: Never, it may be asserted, was the number of political journals so great in proportion to the population of a country as at present in ours. Never were they, all things considered, so cheap, so universally different and so easy of access. 10° 1786 Thomas Jefferson said, "Our liberty depends upon freedom of the press and that cannot be limited without being lost." 101

Chapter 5

THE FIRST AMENDMENT TANGLES WITH SEDITION 1787 THROUGH 1799 General Events and Perspectives 1787—The American people claimed the right to speak freely at town meetings. "We speak as a right given to us by God," many said. A Constitutional Convention convened in Philadelphia to propose a new basis for the developing government It was dominated by the Federalist faction which was most concerned with ouffining the structure and form of the government. They were only incidentally concerned with the individual human rights and governmental abuses listed in the Declaration of Independence eleven years earlier. The debates were torrid, however, as the hot summer progressed, but by the close of the convention in September the Federalists prevailed and proposed a Constitution which had no Bill of Rights. Edmund Randolph, governor of Virginia, refused to sign the proposed United States Constitution because he thought it was dangerous to liberty and a second convention was needed to eliminate its dangers. George Mason of Virginia refused to sign as did Elbridge Gerry of Massachusetts. Sixteen other delegates were absent when the signing occurred because they considered the Constitution to be futile or unwise, only 39 of a possible 73 delegates signed the Constitution. During the convention a rule said nothing spoken in the house was to be printed, published, or communicated without leave. Early on 10 states voted that a Bill of Rights should not preface the Constitution. l Shay's rebellion of debtor farmers failed in Massachusetts, but it accelerated the consideration of a new constitution.2 1788—Alexander Hamilton, who wrote most of the Federalist papers expressed disdain for the masses who he said were "turbulent and changing; they seldom judge or determine right."3 Thomas Jefferson wrote: I am in hopes that the annexation of a Bill of Rights to

1787 Through 1799 / 41 the Constitution will alone draw over so great a proportion of the minorities, as to leave little danger in the opposition of the residue; and that this annexation may be made by Congress and the Assemblies, without calling a convention which might endanger the most valuable parts of the system.4 James Madison, who wrote 29 of the Federalist papers urging ratification of the Constitution, commented in defending the proposed document that: In Virginia, I have seen the Bill of Rights violated in every instance where it has been opposed to a popular current; wherever the real power the government has, there is the danger of oppression. In our government, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended not from acts of government, contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of its constituents.5 1789—New Hampshire was the ninth state to ratify the United States Constitution to provide for its adoption. Virginia and New York ratified it a week later before it went into effect March 1789 and North Carolina and Rhode Island ratified it in the next few months.6 Virginia representatives insisted when they ratified the Constitution that the liberty of conscience and of the press could not be canceled, abridged, restrained, or modified by any United States authority. This included Congress, the judiciary, and the executive branches.7 George Washington became the first president on April 30, 1789. Because the inauguration date was delayed, his first term was 57 days less than four years.8 In his first inaugural address, President George Washington said, "The preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered, perhaps, as deeply, as finally, staked on the experiment intrusted to the hands of the American people." 1791—Eight states had ratified the amendments comprising the Bill of Rights. Rhode Island and Vermont did so in 1791 and final adoption of the Bill of Rights occurred December 15,1791, when the Virginia Senate finally voted for ratification. The first two proposed amendments to the Bill of Rights failed to gain acceptance in state voting, which meant that the last ten amendments became the Bill of Rights, with the proposed third amendment becoming thefirstamendment. (The long dormant original second amendment was finally ratified in 1994 to become the 27th Amendment.)9 1794—Eh Whitney's invention of the cotton gin revived Southern plantation agriculture and provided impetus for a great influx of slaves into the Southern states.10

42 / The First Amendment Tangles With Sedition Freedom of Expression 1787 George Brock and Gideon Pond published articles in sympathy with Shay's rebellion and were indicted for libeling the government, but were never tried. ll "Centinel" said in the Philadelphia Freeman's Journal that designing and tyrannical men "have been inimical to the press, and have considered the shackling of it as the first step towards the accomplishment of their hateful domination."12 A Democratic Federalist wrote in the Pennsylvania Herald that "under the enormous power of the new confederation, which extends to the individuals as well as to the states of America, a thousand means may be devised to destroy effectually the liberty of the press." 13 "Fair Play" wrote in the Independent Gazette that: At the glorious period of our independence, the newspapers were filled with publications against as well as for that solitary measure. And as I am clearly of the opinion, that the liberty of the press—the great bulwark of all the liberties of the people—ought never to be restrained and that on every occasion truth and justice should have fair play.14 Federalists maintained that nothing in the Constitution threatened freedom of the press, while anti-federalists criticized it for not protecting press freedom. "The First Article of the Constitution gives unlimited powers to Congress who may exercise their power to the total suppression of the liberty of the press." This assessment appeared in a petition to the Pennsylvania convention from Cumberland County.15 The Gazette of the State of Georgia published an essay of "A Georgian" saying: The Liberty of the Press (that grand Palladium of our Liberties) totally suppressed, with a view to prevent a communication of sentiments throughout the states. This restraint is designedly intended to give our new masters an opportunity to rivet our fetters the more effectually.l6 Thomas Jefferson wrote Edward Carrington that: The good sense of the people is always going to be the greatest asset of American government. Sometimes they might go astray, but they have the ability to right themselves. The people should always have media to express opinions through. The basis of our government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.l7

1787 Through 1799 / 43 Thomas Jefferson wrote James Madison that: I do not like,first,the omission of a Bill of Rights, providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trial by jury.18 As the Constitutional Convention closed, both James Madison and Richard Henry Lee attacked the proposed Constitution because it had no provision for a Bill of Rights or for freedom of the press. 19 George Mason, a Virginia delegate to the Constitutional Convention, said that there is no declaration of any kind preserving the liberty of the press, or the trial by jury in civil causes. He refused to sign the proposed Constitution.20 The New York Journal said the proposed constitution would end journalistic freedom entirely and thereby "give our new masters an opportunity to rivet our fetters the more effectively." None of the state delegations had voted in favor of a motion at the Constitutional Convention to form a committee to prepare a Bill of Rights.21 "Old Whig III" said in the Independent Gazetteer that: Suppose an act of the constitutional legislature should be passed to restrain the liberty of the press; to appoint licensers of the press in every town in America; to limit the number of printers; and to compel them to give security for their good behavior, from year to year, as the licenses are renewed: if such a law should be once passed, what is there to prevent execution of it? 22 "Old Whig I" in the Philadelphia Independent Gazetteer said: Even the press which has so long been employed in the cause of liberty, and to which perhaps the greatest part of the liberty which exists in the world is owing at this moment; the press may possibly be restrained of itsfreedom,and our children may possibly not be suffered to enjoy this most invaluable blessing of a free communication of each other's sentiments on political subjects. Should freedom of the press be restrained on the subject of politics, there is no doubt it will soon after be restrained on all other subjects, religious as well as civil.23 The Pennsylvania Gazette said: The neglect of the Convention to mention the Liberty of the Press arose from a respect to the state constitutions, in each of which this palladium of liberty is secured, and which is guaranteed to them as an essential part of their republican forms of government. But supposing this had not been done, the liberty of the press would have been an inherent and political right, as long as nothing was said against it.24

44 / The First Amendment Tangles With Sedition During the week of September 12 to 17, the Constitutional Convention rejected 7 to 4 a proposal by Charles Pinckney and Elbridge Gerry that the words "The liberty of the press should be inviolably preserved" be added. " A motion to add a statement that the liberty of the press should be preserved was defeated because Delegate Roger Sherman said it was unnecessary since the power of Congress did not extend to the press.26 James Wilson of Pennsylvania influenced attitudes towards freedom of the press in his widely read writings. He believed that: It is very true that this Constitution says nothing with regard to the press, nor was it necessary, because it will be found that there is given to the general government no power whatsoever concerning it; and no law in pursuance of the Constitution can possibly be enacted to destroy that hberty. The idea of liberty of the press is not carried so far as this in any country—what is meant by the liberty of the press is, that there should be no antecedent restraint upon it, but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual. The press is undoubtedly free, but it is necessary to that freedom, that every man's tenets on government should be printed at public cost? In truth, the proposed system possesses no influence whatsoever upon the press, and it would have been negatory to have introduced a formal declaration on the subject; every declaration might have been construed to imply that some degree of power was given, since we undertook to describe its extent. What control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom, the hberty of the press? The liberty of the press should be held sacred.27 1788 "American Citizen IV" said that neither the old federal constitution or the proposed one contained a Bill of Rights, not did either notice liberty of the press, because they were already provided for by the state constitutions.M "Brutus II", in the New York Journal, said that the liberty of the press should be held sacred. w Samuel Bryan wrote in the Independent Gazetteer that: The Pennsylvania constitution provides and declares that the people have a right offreedomof speech and of writing and of publishing their sentiments. Therefore, the freedom of the press ought not to be restrained, but this belief was threatened by the new Constitution. The framers of it, actuated by the true spirit of an aristocratic government which ever abominates and suppresses all free inquiry and discussion,

1787 Through 1799 / 45 have made no provision for the liberty of the press, that grand palladium of freedom and scourge of tyrants, but observed a total silence on that head. * Matthew Carey suggested this prayer for an American citizen: May freedom's shrine be never stormed! May printing press still abound, to spread blest science all around!31 Following the Carlisle Riot, the Carlisle Gazette published a polemic attack on the Constitution that included a statement that "we contend for a free press and abhor every thing that has the least tendency to shackle it."32 "Centinel II" said, in the Philadelphia Freeman s Journal, that: As long as the liberty of the press continues unviolated, and the people have the right to expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation. The state of society must be very corrupt and base indeed, when the people in possession of such a monitor as the press can be endured to exchange the heavenbom blessings of liberty for galling chains of despotism. The abolition of that grand palladium offreedom,the liberty of the press, in the proposed plan of government, and the conduct of its authors, and patrons, is a striking exemplification of these observations.33 "Citizen of New Haven" said, "The liberty of the press can be in no danger, because that is not put under the direction of the new government."34 "A Democratic Federalist" who actually was an Anti-Federalist said: There is no knowing what corrupt and wicked judges may do in process of time when they are not restrained by express laws. The case of John Peter Zenger of New York ought still to be present to our minds to convince us how displeasing the liberty of the press is to men in high power. At any rate I lay it down as a general rule that whenever the powers of government extend to the lives, the persons, and the properties of the subject, all their rights ought to be clearly and expressly defined, otherwise they have but poor security for their liberties.35 Oliver Ellsworth of Connecticut insisted that the states did not give Congress the power to prohibit the liberty of the press; thus it was unnecessary to have a free press clause in the Constitution.36 Federalists forced the American Herald of Boston out of business because of its advocacy of Anti-Federalist views. William Findley said, "The liberty of the press is not secured and the powers of

46 / The First Amendment Tangles With Sedition Congress are fully adequate to its destruction, as they are to have the trial of libels, or pretended libels against the United States."37 After his printing shop was vandalized by a mob in New York City, Thomas Greenleaf, an Anti-Federalist editor, escaped by shooting his way out and began publishing again. He wrote, "The Freedom of the Press had hitherto been conceived as the Palladium (Protector) of Liberty in America." M Alexander Hamilton in the Federalist Papers belittled the need for constitutional attention to a free press. He and Madison and Jay wrote the 85 papers in an effort to convince New Yorkers to support the new constitution. Since the Constitution did not mention the free press, Hamilton dismissed the idea thus: On the subject of liberty of the press, as much as been said, I cannot forbear adding a remark or two. In the first place, I observe there is not a syllable concerning it in the constitution of this state (New York), and in the next, I contend that whatever has been said about it in that or any other state amounts to nothing. What is the liberty of the press? Who can give it any definition which should not leave the utmost latitude for evasion? I hold to be impracticible; and from this infer that its security must altogether depend on public opinion and on the general spirit of the people and of the government. He also said: Why declare that things shall not be done which there is no power to do? Why, for instance should it be said that the liberty of the press should not be restrained, when no power is given by which restrictions can be imposed? The security of a free press whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. Freedom of the press is a constitutional guarantee. It is a fundamental right and should not be restrained in any way. The people's and the printer's claim to freedom of the press is founded on fundamental laws and state constitutions, made by the people themselves.39 Postmaster Ebeneezer Hazard delayed or denied newspaper mailings, saying: Many newspapers would not publish anti-Federalist materials unless authors submitted their names with their writings, or unless they could answer, anti-Federalist materials. Others distorted anti-Federalist views. This paper war became ferocious and bitter, but even so reflected the workings of a free press.40 John Humble indicated the new Constitution would enslave all but the powerful. And in regard to liberty of the press, we would be forced to renounce all claim to it forever more. And we shall in the future be perfectly contented and our tongues be left

1787 Through 1799 / 47 to lick the feet of our wellborn masters.41 The Independent Gazette, quipped sarcastically that one of the "blessings" of the Constitution would be the abolition of hberty of the press.42 Jefferson wrote to Mr. A. McDonald that: a declaration of rights I mean one which shall stipulatefreedomof religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the habeas corpus, no standing armies. There are fetters against doing evil which no honest government should decline.43 Thomas Jefferson wrote James Madison that: It is better to establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. A declaration, that the Federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed. In the case of religion and the press the government should not restrain the press, or make printers liable for facts printed. The licentiousness of the press produces the same effect as the restraint of the press was intended to do. Restraint keeps things from being told and licentiousness keeps things from being believed when told. Freedom of the press means freedom from prior restraint and not at all to the matter, whether good or bad.44 Richard Henry Lee wrote that freedom of the press is a constitutional guarantee. It is a fundamental right and should not be restrained in any way. The people's and the printer's claim to freedom of the press is founded on fundamental laws and state constitutions, made by the people themselves. He pointed out that bad men could easily abuse a law made by good men who believed that freedom of the press should be restrained because it disturbed the operations of new governments. He also said: The people have the right to alter or abolish freedom of the press; not the Congress for if Congress were allowed or claimed the right tofreedomof the press, it would have the power to levy taxes on it, thus being in direct power to destroy or restrain freedom of the press. He believed that the advantages of a free press far outweighed any disadvantages. Lee of Virginia proposed to Congress that the Constitution be amended to include a guarantee of the right of free press. Similar amendments were proposed of adopted by seven state ratifying conventions.45 Chief Justice of Pennsylvania Thomas McKean convicted Eleazer Oswald for contempt in the form of libel. Oswald contended that the common law of libel was incompatible with the constitutional guarantee of a free press. Oswald asked the Pennsylvania Assembly to impeach the judge for violating the state constitution. The

48 / The First Amendment Tangles With Sedition Assembly ruled Oswald's charges were unsupported McKean accepted the English common law definition of liberty of the press wherein the editor of a newspaper was punished by the summary criminal process of contempt of court for a publication censuring his adversary and one of the judges in a pending case to which the editor was the defendant. The practice of citing publications for contempt was continued thereafter by many judges. Oswald said he was being attacked by Andrew Browne under the guise of a libel suit and that his situation as a printer and the rights of the press and the rights offreemenwere being struck at by Browne. Oswald had published anonymous articles reflecting on Browne's character. This hurt enrollment in Browne's female academy. * "Domosthenes Minor" said: What control has the federal government upon that sacred palladium of national freedom? It would have been as unnecessary to stipulate that thefreedomof the press should be preserved inviolate as that the impost should be general in operation; the very declaration would have been deemed nugatory, and in implication that some degree of power was given.47 George Nicholas, soldier and politician, said that among those principles deemed sacred there is none of which the importance is more deeply impressed on the public mind than the liberty of the press.48 "Old Whig I" wrote: One thing is calculated to turn our fears on this the fashionable language which now prevails so much and is used sofrequentlyin the mouths of some who formerly held very different opinions; that the common people have no business to trouble themselves about government. If this principle is just, the consequence is plain that the common people need no information on the subject of politics. Newspapers, pamphlets and essays are calculated on to mislead and inflame them by holding forth to them doctrine which they ought to leave to their superiors.49 "Old Whig III" wrote: For instance, the hberty of the press. What control can proceed from the federal government to shackle of destroy that sacred palladium of national freedom? What control? By the sixth article of the proposed constitution? This act of the continental legislature is the supreme law of the land; and the judges in every state will be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding. Suppose a printer should be found hardy enough to contravene such a law when made, and to contest the validity of it. He is prosecuted we will suppose in this state; he pleads in his defense, that by the constitution of Pennsylvania, it is declared that the freedom of the press ought not to be restrained. What will this avail him? The judge will be

1787 Through 1799 / 49 obliged to declare that notwithstanding the constitution of any state, this act of the constitutional legislature which restrains the freedom of the press in the supreme law; and we must punish you. *° "Old Whig V" warned that the constitution made personal rights insecure including freedom of speech and of writing and publishing thoughts on public matters.51 "Plain Truth" which appeared in the Independent Gazetteer said: The hberty of the press in each state can only be in danger from the laws of that state, and it is everywhere well secured. Besides, as the new Congress can only have the defined powers given, it was needless to say anything about liberty of the press, liberty of conscience, or any other liberty that a freemen ought never to be deprived of.52 David Redick in Philadelphia feared that adoption of the Constitution would date the loss of American liberty. "Why," he asked, "was not the liberty of the press provided for?"33 A "Republican I" article pointed out that the power for a limited time to authors to hold the exclusive right to their respective writings provides some power of the Congress to influence and control the press. "This possible avenue makes necessary and proper a stipulation for preserving inviolate the liberty of the press. The press is the scourge of tyrants and the grand palladium of liberty."54 Sixteen people published a broadside called An Address of the Seceding Members of the House of Representatives of the Commonwealth of Pennsylvania to Their Constituents. It urged the assemblymen to judge whether the liberty of the press may be considered a blessing or a curse in a free government and whether a declaration for the preservation of it was necessary.55 Roger Sherman in his "A Countryman II" letter in the New Haven Gazette said freedom of the press was too important a right to trust to mere paper protection in the Constitution since legislators, executives, or monarchs could all find a means either to take them from you or to render them useless. "The Constitution of Connecticut allows that state's General Assembly to restrain the press, and patching up the national Constitution with a stipulation in favor of the press would be futile since the Constitution already gives Congress enough authority to do the greatest injury if that power is abused." ** John Smilie, in the Pennsylvania debates said: Suppose Congress would pass an act for the punishment of libels and restrain the liberty of the press, for they are warranted to do this. What security would a printer have, tried in one of their courts?57

SO / The First Amendment Tangles With Sedition Charles Tillinghast reported that: Oswald (Eleazer) was the only printer who dared print the address of the Seceding Members to their constituents; some of the New Constitution Gentry told him that if he published such pieces, they would withdraw their subscriptions; he replied that they were very welcome to, if they would first discharge their arrearages.58 George Lee Tiiberville believed it was absolutely necessary to stipulate liberty of the press so that violation of it could be scrupulously and jealously guarded against.59 Virginia, New York, and North Carolina requested a free press guarantee in their constitutional ratification conventions. *° Pelatiah Webster, writing as a "Citizen of Philadelphia" taunted the seceding members saying: They object that the liberty of the press is not asserted in the constitution. I answer neither are any of the ten commandments, but I don't think that it follows that it was the design of the convention to sacrifice either the one or the other to contempt, or to leave them void of protection or effectual support.61 WiUiam Whiting, chiefjustice of the Court of Common Pleas of Berkshire County of Massachusetts, was convicted of seditious libel for an unpublished article critical of government actions during Shay's Rebellion. His prison term was remitted.62 Robert Whitehall, anti-federalist, said: Though it is not declared that Congress have a power to destroy the hberty of the press; yet in effect t ( K -y will have it. For they will have the powers of self-preservatioa They have a power to secure to authors the right to their writings. Under this, they may suppress it. Article 2(1), Section 6 restrains the press because Congress members should not be questioned in any place other than Congress.63 Benjamin Workman complained that "it need not be wondered, that the friends of this despotic scheme of government were driven to the last and only alternative from which there was any probability of success: namely the abolition of freedom of the press." 64 1789 Congress, on the basis of a Section 8 of Article I of the Constitution, enacted the first statutory copyright law for the United States. Statutory copyright covers publication; prior to publication, common law copyright prevails.65 William Cushing, Chief Justice of Massachusetts, expressed the limited liberalism present after the adoption of the Constitution but prior to the Bill of Rights by saying

1787 Through 1799 / 51 that, while prior restraint was unacceptable, subsequent punishment was certainly in line since falsehoods and scandals against the government should be punished. He accommodated seditious libel or falsehood as a punishable offense as did John Adams.66 Benjamin Franklin Bache, grandson of Ben Franklin, began his Anti-Federalist, proJefferson newspaper, The General Advertiser. Its popular name was The Aurora, and Franklin was called "Benny" or "Lightning Rod Junior."67 Benjamin Franklin wrote a satirical article in 1789 on the abuses of the press. In defining the power of the press, he was particularly concerned with uneducated people accusing and abusing others through the press, but because of their illiteracy they had other persons write for them and therefore could not be convicted. Franklin failed to appeal for the freedom of the press during the constitutional convention. Instead, he considered the press was now dealing with false personal accusations and provided a disgraceful picture of America to the world. His 1789 essay indicated the Constitution should have placed restraint on the "Court of the Press" which operated like the Spanish Inquisition. He favored freedom to publish opinions about public matters, but disliked the press habit of condemning honest citizens as enemies of freedom of the press. ** Thomas Jefferson wrote to Francis Hopkinson that: I disapproved from the first moment the want of a Bill of Rights, to guard hberty against the legislative as well as the executive branches of the government; that is to say, to secure freedom in religion, freedom of the press, freedom from monopolies, freedom from unlawful imprisonment,freedomfroma permanent military, and a trial by jury in all cases determinable by the laws of the land. w Thomas Jefferson wrote to James Madison that: I like the declaration of rights as it goes, but I should have been for going further. The people shall not be deprived or abridged of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, hberty, or reputation of others, or affecting the peace of the Confederacy with foreign nations.70 Thomas Jefferson said, "I never had an opinion which I was afraid to own." 71 James Madison, in a letter he circulated in Virginia, wrote: It is my sincere opinion that the Constitution ought to be revised, and that the First Congress under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants, etc. n

52 / The First Amendment Tangles With Sedition James Madison's proposal for the First Amendment made in July provided: The civilrightsof none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the equal rights of conscience be in any manner, or on any pretext, infringed The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolate. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions in remonstrances, for redress of their grievances.73 The Senate edited the House final proposal to read: Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people to peaceably assemble, and petition to the government for the redress of grievance. James Madison also proposed an amendment in July saying, "No state shall infringe the right of trial nor thefreedomof speech or of the press." This proposal was eliminated by the Senate.74 James Madison said: Could it be so arranged that every newspaper when printed on one side, should be handed over to the press of an adversary, to be printed on the other, thus presenting to every reader both sides of every question, truth would have a fair chance. But such a remedy is ideal.75 In mid-August, Madison submitted his version of the Bill of Rights to the House of Representatives. A conference committee of the House and of the Senate eliminated Madison's proposal prohibiting the statesfrominfringing upon freedom of conscience, speech, or the press. Madison was a member of the conference committee. Madison wanted an amendment saying that "no state shall violate the equal right of conscience, or thefreedomof the press because it is proper that every Government should be disarmed of powers which trench upon those particular rights." He said that "state governments are as liable to attack these invaluable privileges as the general government is, and ought to be guarded against." 1790 The amendment agreed to in the conference committee of the House and Senate and subsequently agreed to by both houses and then sent to the states for ratification by President Washington provided that: Congress shall make no law respecting an establishment of religion (freedom from state religion), or prohibiting the free exercise thereof (freedom of personal religion); or abridging the freedom of speech

1787 Through 1799 / 53 (freedom of speech), or of the press (freedom of the press); or the right of the people peaceably to assemble (freedom of assembly), and to petition the Government for a redress of grievances (freedom to petition).76 Benjamin Franklin Bache was barred from the floor of the House of Representatives by the Federalists who disliked his anti-war views.77 The Pennsylvania constitution said, "The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for that abuse of that liberty." It stated the press should have no antecedent restraint, but the author would be responsible when he attacked the security or welfare of the government; however, it provided truth could be evidence in any prosecution for the publication of papers investigating the official conduct of officers or men in a public capacity. It also allowed a jury, rather than a judge, to decide whether an accused's statement was libelous as a matter of law and truth could be defense in libel prosecution.78 1791 Alexander Hamilton, Federalist leader, said, "The liberty of the press consists of the right to publish with impunity truth with good motives, for justifiable ends, to disallow it is fatal."79 Thomas Jefferson said that the only security of all is in a free press. *° 1792 Thomas Jefferson responded to complaints of the Spanish Commissioners about press attacks on the king of Spain by writing: Considering the great importance to the public liberty of the freedom of the press, and the difficulty of submitting it to very precise rules, the laws have thought it less mischievous to give greater scope to its freedom than to the restraint of it. The President has therefore, no authority to prevent publications of the nature of those you complain of.81 Thomas Jefferson wrote: You have seen too much of the conduct of the press in countries where it is free, to consider the gazettes as evidence of the sentiments of any part of the government; you have seen them bestow on the government itself, in all its parts, its full share of inculpation. w Thomas Jefferson in The Anas said "Freneau's paper has saved our Constitution, which was galloping fast into monarchy, and has been checked by no means so powerfully as by that paper. It is well and universally known, that, it has been that paper which has checked the career of the Monocrats." w

54 / The First Amendment Tangles With Sedition Thomas Jefferson wrote to President Washington that no government ought to be without censors; and where the press is free no one ever will. M In order to understand Jefferson's theories and attitudes toward a free press, it is necessary to review his statements made throughout his lifetime.85 President Washington demanded Editor Freneau be dismissed from the State Department because Washington said that "that rascal" Freneau had been trying to use him as a distributing agent for Freneau's newspaper by sending him three copies every day.86 1793 John Fenno made his Gazette of the United States the mouthpiece of the Washington administration. He moved it to Philadelphia in 1791 and obtained a loan from Alexander Hamilton to make it a daily in 1793. ** Philip Freneau scolded Washington by reminding the president that he was only a public servant and should not be so hanged up by official importance as to think it beneath his dignity to mix occasionally with the people. w Thomas Jefferson wrote in his Notes on a Constitution that "Printing presses shall be free except as to false facts published maliciously, whether followed by pecuniary damages or not, or to expose to punishment of law." Thomas Jefferson advised President Washington to provide information freely in these comments: On a severe review of the question, whether the British communication should carry any such mark of being confidential as to prevent the Legislature from publishing them, he is clearly of opinion they ought not Will they be kept secret, if secrecy be enjoined? Certainly not, and all the offense will be given (if it be possible any should be given) which would follow their complete publication. If they would be kept secret, from them? " The Aurora soon became a bitter and vigorous opponent of Hamilton and the Federalists. 1794 James Madison said, "that the censoral power is in the people over the government and not in the government over the people." Madison spoke in favor of emerging political societies saying that Congress shouldn't infringe on such rights of people. Congressional actions "may extend to the liberty of speech and of the press" he warned. *° The Senate decided not to make public the provisions of the controversial Jay

1787 Through 1799 / 55 Treaty, but Senator Steven Mason gave a copy to The Aurora which published the treaty in full.91 1795 The political faction led by Jefferson used newspapers to discredit John Jay and his unpopular treaty with England. 1796 John Adams, supported by four-fifths of the newspapers, won the presidency with a margin of three electorial votes. n Bache's Aurora said, of President Washington: If ever a nation has been debauched by a man, the American nation has been debauched by Washington. Let his conduct be an example to future ages. Let it serve to be a warning that no man be an idol.93 John Fenno's Gazette of United States, a Federalist newspaper, commented favorably on the British Sedition Act which was used later as a model for the U.S. Sedition laws of the federalists.94 William Keteltas was found guilty of "a misdemeanor and contempt of the authority of this House" for publishing an article denouncing the tyranny of trial magistrates. He was jailed, and his case was widely publicized.95 1797 James Callender referred to Washington and Adams as poltroons and venal, and said Adams was a libeler whose hands reeked with the blood of the poor, friendless Connecticut sailor, and a liar whose office was a scene of profligacy and usury, and a heavy-handed incendiary whose purpose was to embroil this country in war with France. % The Columbian Centinel, Federalist newspaper, said "There is a liberty of the press which is very short of the liberty of burning our houses."97 Porcupine s Gazette and Daily Advertiser was established. Editor Cobbett spent the next two years defending himself and his paper and attacking those who were opposed to the English cause and the Federalist party. Cobbett called political opponents the refuse of the nations and frog-eating, man-eating, blood-drinking cannibals. * 1798 John Allen, a Federalist Congressman, wrote: If ever there was a nation which requires a (sedition law), it is this. Let gentlemen look at certain papers printed in the city and elsewhere, and ask themselves whether an unwarrantable and dangerous combination

56 / The First Amendment Tangles With Sedition does not exist to overturn and ruin the Government by publishing the most shameless falsehoods against the Representatives of the people of all denomination, that they are hostile to free governments and genuine liberty, and of course to the welfare of this country that they ought, therefore to be deplored, and the people ought to raise an insurrection against the Government God deliver us from such liberty, the liberty of vomiting on the public, floods of falsehoods and hatred to everything sacred, human, and divine. " Congress authorized federal judges to bind people to good behavior in cases arising under state laws, warning them not to persist in government criticism. Congressman Albert Gallatin in opposing the Sedition law, said: The First Amendment was added to the Constitution to remove any shadow of a doubt as to whether the original charter might possibly have given Congress any power over the press. It wasn't only intended to preserve the pre-Revolutionary War victory abolishing censorship prior to publication, but to provide a new protection guaranteeing free discussion of public men and measures. It not only repudiated the English common law concept of libels against the government but also forbade Congress to add any restraint, either by previous restriction, subsequent punishment, alteration of jurisdiction, or mode of trial. 10° Thomas Jefferson warned that the Federalists have brought into the lower house a sedition bill, which among other enormities undertakes to make printing certain matters criminal, though one of the amendments to the Constitution has so expressly taken rehgion, printing presses, etc. out of their coercion. Indeed this bill and the alien bill both are so palpably in the teeth of the Constitution as to show they mean to show no respect to it.101 Thomas Jefferson wrote: I have been some time used as the property of the newspapers, a fair mark for every man's dirt. Some, too, have indulged themselves in this exercise who would not have done it, had they known me otherwise than through these impute and injurious channels; it is hard treatment, and for a singular kind of offence, that having obtained by the labors of a life the indulgent opinions of a part of one's fellow citizens. However, these moral evils must be submitted to, like the physical scourges of tempest, fire, etc. I02 In his Kentucky resolutions Thomas Jefferson wrote: It is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people'; no power over the

1787 Through 1799 / 57 freedom of religion, freedom of speech, or freedom of the press being delegated to the United States, all lawful powers respecting the same did ofrigjitremain, and were reserved to the States or the people. Thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. Libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of Federal tribunals. Therefore, the act of Congress of the United States passed on the 14th day of July, 1798, which does abridge the freedom of the press, is not law, but is altogether void, and of no force.103 Thomas Jefferson told James Madison that the purpose of the Sedition Act was the suppression of the Whig (or Republican) press.104 Charles Lee said, "Thefreedomof the press differs from the licentiousness of the press, and the laws which restrain the latter, will always be found to affirm and preserve the former." 105 James Madison presented his Virginia Resolutions to the Virginia Assembly in its efforts ro resist the Sedition Act. He contended: 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 amendment was intended as a positive and absolute reservation of it. The Sedition Act was unconstitutional. The United States possessed no jurisdiction over common law crimes. A popular free republican government cannot be libeled. The First Amendment was intended to supersede the common-law on speech and press. Freedom guaranteed by the amendment was absolute as far as the federal government was concerned because it could not be abridged by any United States Authority. In the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured not by laws paramount to prerogative, but by constitutions paramount to laws. This seniority of thefreedomof the press requires that it should be exempt, not only from previous restraints by the executive but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the licenser, but from the subsequent penalty of laws. It would be mockery to say that no laws shall be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.106 Madison did point out that the framers of the First Amendment had very broad understanding offreedomof speech and press and intended to abolish the common law

58 / The First Amendment Tangles With Sedition of libel. A minority report on the Virginia Resolutions believed that: To contend there does not exist a power to punish writings coming within the description of the Sedition Act would be to assert the inability of our nation to preserve its own peace, and to protect itself from the attempt of wicked citizens, who, incapable of quiet themselves, are incessantly employed in devining means to disturb the public repose. The government could punish such utterances for the judicial power of the United States extended to the punishment of libels against the government, as a common law offense. Nor does the First Amendment forbid such laws, as punishment of licentiousness is not a restriction of the freedom of the press. If by freedom of the press is meant a perfect exemption from all punishment for whatever may be published, that freedom never has, and most probably never will exist. Even so the Virginia House of Delegates passed Madison's resolutions condemning the Sedition Act. James Madison said the Sedition Act was unconstitutional and a monster that would forever disgrace its parents.107 Madison's toast at a banquet July 4 defiantly castigated the Sedition Act. He toasted, "The Freedom of the Press—The Scourge of the Guilty and the support of virtuous Government." 108 Only a handful of the newspapers being published supported the Jeffersonians. The Federalist press attacked incessantly with vitriolic materials. Congress passed the Sedition Act. It provided punishment with a fine of $2,000 and two years in prison for false, scandalous, and malicious writing against the government. m The Federalists became angry about insults hurled at them by Republican journalists and pamphleteers; they feared the French Jacobins when war seemed inevitable and they disliked the foreign press which exploited its freedom to the utmost in America. In debating the Sedition Act the federalist faction contended the First Amendment did not mean that Congress could not pass laws restricting the press, especially in criminal matters such as sedition. n o The Federalists, while defending the Sedition law as constitutional reform, embraced the principle that truth could be used as a defense against libel and that such a plea could be presented to the jury.1U

1787 Through 1799 / 59 1799 The "Goodrich Report" presented to the House of Representatives defended the Sedition Act. The Federalists believed press controls were essential for the government to operate. The idea that the states had authority to handle the press, not the federal government, was quickly dismissed. U2 Anthony Haswell was sentenced to two months under the Sedition Act for criticizing Matthew Lyon's treatment by the government. U3 George Hay contended there was no way a free government could be attacked criminally by opinions of its citizens. He believed that freedom of the press, like chastity, was either absolute or did not exist. Hay, an American libertarian, said, "A man may say everything which his passions suggest: he may employ all his time, and all his talents, if he is wicked enough to do so, in speaking against the government matters that are false, scandalous, and malicious without being subject to prevention."114 Thomas Jefferson wrote to Archibald Stuart that: There arerightswhich it is useless to surrender to the government; and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing. Our citizens may be deceived for awhile, and have been deceived, but as long as the presses can be protected, we may trust them for light.115 Thomas Jefferson wrote that while the art of printing is left to us, science can never be retrograded. What is once required of real knowledge can never be lost. U6 Jefferson wrote to Elbridge Gerry that "I am for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents." n 7 James Madison argued that the Sedition Act was unconstitutional and that: The First Amendment deprived federal courts of all jurisdiction over common law crimes and that freedom of the press must extend beyond an exemption from prior restraint to an exemption from subsequent penalties. Freedom of speech and press was absolute, admitting no exceptions, at least as far as the national government was concerned. Calumny was forbidden by state laws and libelous writing or expression could be punished by state courts, including defamation of public officials acting in public capacities. He said the Federalists, with their love of power, drew a thin line between freedom and licentiousness of the press and thus turned the First Amendment which was dictated by the most lively anxiety to preserve that freedom, into an instrument for abridging it. It is vicious in the extreme to caluminate meritorious public servants; but it is both artful and vicious to arouse the public

60 / The First Amendment Tangles With Sedition indignation against calumny in order to conceal usurpation. A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. To the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been obtained by reason and humanity over error and oppression. James Madison said: No freedom was more deeply impressed on the public mind than the liberty of the press even though that liberty was sometimes carried to excess and even degenerated into licentiousness; but the remedy has not yet been discovered whereby the one could be stopped without shutting off the other. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which correct without enslaving the press, they have never yet been devised in America. He said that freedom of the press was protected by public opinion despite the Sedition Act and that "freedom exercised by the press far exceeded the common law limitations of England and that the meaning of press freedom had been established in its vigorous practice rather than in outmoded precedents. U8

Chapter 6

RE-EMERGENCE OF FREE EXPRESSION 1800 THROUGH 1824 General Events and Perspectives 1800—Thomas Jefferson, in discussing rehgious intolerance, told Benjamin Rush that "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." * 1811—Thomas Jefferson wrote that the good opinion of mankind, like the lever of Archimedes, with the given fulcrum, moves the world.2 1816—Thomas Jefferson said, "Public opinion is a censor before which the most exalted tremble for their future as well as present fame."3 1818—John Adams wrote to Hezekiah Niles that: But what do we mean by the American Revolution? Do we mean the American War? The Revolution was affected before the war commenced The Revolution was in the minds and hearts of the people; a change in their religious sentiments, of their duties and obligations. This radical change in principles, opinions, sentiments and affections of the people was the real American Revolution.4 1821 —Jefferson told John Adams that: A country, which has given to the world the example of physical liberty, owes to it that of moral emancipation also, for as yet it is but nominal with us. The inquisition of public opinion overwhelms in practice the freedom asserted by the laws in theory. The amendments [to the constitution of Massachusetts] of which we have as yet heard, prove the advance of liberalism and encourage the hope that the human mind will

62 / Re-emergence of Free Expression some day get back to the freedom it enjoyed two thousand years ago.5 Freedom of Expression 1800 The dark era of American journalism descended with vicious partisanship in the press. Hamilton's pohtical base had been achieved when he created fortunes for many he had advised to buy at 20 cents on the dollar war-time colonial bonds, and then had the government redeem than at full face value while he was secretary of the treasury.6 David Brown produced an inscription to place on a liberty pole erected in Dedham, Mass., for which he was sentenced to 18 months under the Sedition Act. His inscription read: No Stamp Act, no sedition, no alien bills, no land tax; downfall to the tyrants of American peace and retirement to the President; long live the vice president of the minority. May moral virtue be the basis of civil government.7 Congress attempted to repeal the Sedition Act in response to thousands of petitions, but the Federalists defeated that effort. They then tried to extend the Act beyond its expiration date but that effort also failed.8 Thomas Cooper, in his essay, "On The Propriety and Expediency of Unlimited Inquiry" argued against criminal libel actions. He was one of the earliest libertarians working for complete freedom for expression.9 William Duane, editor of the Aurora, exposed a Federalist scheme to steal the 1800 election for Adams. This scandal helped win the election for Jefferson. 10 Albert Gallatin said the First Amendment meant that Congress could not pass any law punishing any real or supposed abuse by the press, that no prior restraint be imposed, nor that punishment should by law be inflicted upon it. n Journalism before 1800 consisted of the town crier, letter writing, newsletters, advertising handbills, tracts, pamphlets, ballads, broadsides, news broadsides, political broadsides, gossip sheets, advertising flyers, newspapers, books, magazines, almanacs, and a variety of religious publications. The libertarian view of freedom of expression as an unlimited natural right and the basis for intelligent human affairs was held by Jefferson and others. After 1800 the rights of liberty of the press to publish truth on matters of public concern practically eliminated the old English common law of seditious libel and blasphemous libel, relegating laws about obscenity and immorality to the public nuisance level.12

1800 Through 1824 / 63 James Madison said: This seniority of the freedom of the press requires that it should be exempt, not only from previous restraints by the execution but from legislative restraint also; and this exemption, to be effectual must be an exemption not only from the licenser, but from the subsequent penalty of laws. It would be mockery to say that no laws shall be passed preventing publicationsfrombeing made, but that laws might be passed for punishing them in case they should be made. The Report by the Virginia House of Delegates written by Madison said. The Sedition Act was unconstitutional. The United States possessed no jurisdiction over common law crimes. A popular free republican government cannot be libeled. The First Amendment was intended to supercede the common-law on speech and press. Freedom guaranteed by the amendment was absolute as far as the federal government was concerned because it could not be abridged by any United States authority. Madison also wrote: 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 amendment was intended as a positive and absolute reservation of it. He also said, "In the United States the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured not by laws paramount to prerogative, but by constitutions paramount to laws." 13 John Nicholas of Virginia contended there was no way to distinguish liberty from licentiousness without abridging liberty itself.14 Twenty-five arrests were made under the Sedition Act and three under common law. There were fifteen convictions; eight were related to newspapers; most began in 1798, but trials occurred in 1800.15 St. George Tucker, a Virginia judge, rejected William Blackstone's concept of prior restraint only, and advocated that the press should be absolutely and equally free from subsequent punishment. Tucker advocated total exemption of the press from all control, restraint, or jurisdiction of the federal government. For injuries done the reputation of any person, as an individual, the state courts were open for ample and competent reddress.16 Tunis Wortman wrote A Treatise Concerning Political Enquiry and the Liberty of the Press. His libertarian principles had a profound effect upon the country's attitudes following the expiration of the Sedition Act. Wortman contended there was

64 / Re-emergence of Free Expression no such thing as a law of seditious libel. That crime could never be reconciled to the genius and constitution of a representative commonwealth. He said: The Coercion of Libel is rather a subject of domestic superintendence than an object that relates to the general interests of the Union. Wherever such Coercion is proper or necessary, our State legislatures and tribunals are possessed of sufficient authority to remedy the evil. It is, therefore, to be presumed to have been intended that the States respectively should solely exercise the power of controlling the conduct of their own citizens in such cases. It is necessary that every vehicle of communication, every instrument, and every faculty by which Mind can correspond with Mind should remain independent of Government, and only be subject to the censorial jurisdiction of society. The establishment of a Licensor is of all expedients, the most dangerous. The freedom of speech and opinion is not only necessary to the happiness of Man, considered as a Moral and Intellectual Being, but indispensably requisite to the perpetuation of Civil Liberty.17 1801 One hundred forty newspapers favored the Federalist political views, while only a handful supported Jefferson.18 Thomas Jefferson wrote that the freedom of opinion and the reasonable maintenance of it is not a crime, and ought not to occasion injury. 19 Thomas Jefferson wrote: In every country where man is free to think and to speak, differences of opinion will arise from differences of perception, and the imperfection of reason; but these differences when permitted, as in this happy country to purify themselves by free discussions, are but as passing clouds over spreading our land transientiy, and leaving our horizon more bright and serene.20 Thomas Jefferson said, "Freedom of the press I deem an essential principle of our government and, consequently, ought to shape its administration."21 Thomas Jefferson in his first inaugural address said: Freedom of rehgion,freedomof the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected These principles form the bright constellation which has gone before us and guided our steps through the age of revolution and reformation. Error of opinion may be tolerated when reason is left free to combat it. The will of the people is the only legitimate foundation of any government, and to protect its free expression should be our first object.22

1800 Through 1824 / 65 One of Thomas Jefferson's first actions as president was to pardon anyone in jail convicted under the Sedition Act, and Congress, now controlled by Jefferson Republicans, voted to refund all fines assessed for violations.23 Thomas Jefferson wrote this analysis of the press to Elbridge Gerry: In the first moments of quietude which have succeeded the (presidential) election, the printers seem to have aroused their lying faculties beyond their ordinary state, to reagitate the public mind. What appointments of office they have detailed which had never been thought of, merely to found a text for their calumniating commentaries. A coalition of sentiments is not for the interest of the printers. They live by the zeal they can kindle, and the schisms they can create. It is contest of opinion in politics which makes us take great interest in them, and bestow our money liberally on those who furnish aliment to our appetite. The printers can never leave us in a state of perfect rest and union of opinion They would be no longer useful and would have to go to the plow.24 There was no United States sedition lawfromthe time that the 1798 Sedition Law expired until the 1917-18 law of World War I was established.25 James Sullivan, seeking a compromise between Blackstonian and libertarian press freedom, said, "A reasonable constitutional restraint, judiciously exercised, is the only way in which freedom of the press can be preserved, as an invaluable privilege to the nation."26 "An Inquiry Concerning the Liberty and the Licentiousness of the Press and the Uncontroulable Nature of the Human Mind," was written by John Thomson. He supported Wortman's libertarian stand and added that citizens should have the same freedoms as their elected representatives and that expression should not be punished. He said: Let the Whig and Tory, the royalist and aristocrat, the republican and democrat, or by whatever other name the partisans of political parties are designated be allowed to express their opinions, whether by speech or press, with the same unconstrained freedom with which men of science discuss their subjects of investigation. No more danger will result from one discussion, than arises from the other. Give unto all opinions the same freedom and the same effects will follow.27 1802 Aaron Burr became involved in the burning of a libelous book about the John Adams presidency. The fuss started the friction between Burr and Alexander Hamilton, which ended in Hamilton's death. M The main speech at a Harvard commencement condemned novel reading as

66 / Re-emergence of Free Expression indecent and morally damaging. Thomas Jefferson told Abigail Adams who had upbraided him for releasing James Callender from prison that: I discharged every person under punishment or prosecution under the Sedition Law because I considered and now consider that law to be a nullity as absolute and palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those cast in it for refusing to worship that image.29 Thomas Jefferson told General Thaddeus Koscuisko that newspapers serve to carry off noxious vapors and smoke.30 Dr. Samuel Miller in his Brief Retrospect of the Eighteenth Century, wrote: Too many of our Gazettes are in the hands of persons destitute at once of the urbanity of gentlemen, the information of scholars, and the principles of virtue. To this source, rather than to any particular depravity of national character, we may ascribe the faults of American newspapers, which have been pronounced by travelers, the most profligate and public prints in the civilized world. These considerations, it is conceived, are abundantly sufficient to account for the disagreeable character of American newspapers. Unhappily, too many of the conductors of our public prints have neither the discernment, the firmness, nor the virtue to reject from their pages the foul ebulations of prejudice and malice. Had they more talents, they might render their Gazettes interesting by filling them with materials of a more instructive and dignified kind.31 St. George Tucker based his legal views on the United States Constitution. In a 30-page discussion of the liberty of conscience and the press, he habitually used the designation "absolute." Tucker said that: Liberty of speech and of discussion in all speculative matters consists in the absolute and uncontrollable right of speaking, writing, and publishing our opinions concerning any subject whether religious, philosophical, or political, and of inquiring into and examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject without restraint, except as to the injury of any other individual in his person, property, or good name. n 1803 Thomas Jefferson wrote: "It is so difficult to draw a line of separation between the

1800 Through 1824 / 67 abuse and the wholesome use of the press, that as yet we have found it better to trust the public judgment, than the magistrate, with the discrimination between truth and falsehood."33 Thomas Jefferson wrote to Thomas McKean that: The Federalists having failed in destroying the freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. And the fact is that so abandoned are the Tory presses in this particular, that even the least informed of the people have learned that nothing in a newspaper is to be believed. This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this, if applied.34 1804 The Albany Register, a Federalist paper, published disparaging remarks about Aaron Burr, who became so angry that the resulting arguments led to the duel in which Hamilton was mortally wounded by Aaron Burr.35 Alexander Hamilton in The Speeches atfull length of Mr. Van Ness, Mr. Gaines, the Attorney General, Mr. Harrison, and General Hamilton, in the Great Cause of the People Against Harry Croswell said that freedom of the press consists in the right to publish with impunity, truth, with good motive, for justifiable ends, though reflecting on government, majority, or individuals.36 Thomas Jefferson told Abigail Adams that he "tolerated with the utmost latitude the right of others to differfromme in opinion without imputing to them criminality."37 He wrote, "While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive rights, to do so." 38 Thomas Jefferson wrote: Thefirstobject should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions. In general, the state laws appear to have made the presses responsible for slander as far as it is consistent with its useful freedom. In those states where they do not admit even truth of allegations to protect the printer, they have gone too far. The firmness with which the people have withstood the late abuses of the press, the discernment they have manifested between truth and falsehood, show that they may safely be trusted to hear everything true and false, and to form a correct judgment between them.39

68 / Re-emergence of Free Expression James Kent, of the New York State Supreme Court, said, "Liberty of the press consists of the right to publish, with impunity, truth, with good motives, and for justifiable end, whether it respects government, magistry, or individuals." ^ As late as 1804, Chief Justice Morgan Lewis of New York and a Jeffersonian, believed that truth did not constitute a defense against a charge of seditious libel.41 Of the 200 newspapers, during the campaign for 1804, at least 180 supported the Federalists and only 20 supported Jefferson. This Federalist press heaped invective, falsehood, and libel in their vigorous political and personal attacks on Jefferson. 1805 Thomas Jefferson in his second inaugural address said: During the course of administration and in order to disturb it, the artillery of the [Federalist] press has been leveled against us, charged with whatsoever its licentiousness could devise or dare. These abuses of an institution so important to freedom and science, are deeply to be regretted, inasmuch as they tend to lessen its usefulness, and to sap its safety; they might, indeed, have been corrected by the wholesome punishments reserved and provided by the laws of the several States against falsehood and defamation; but public duties more urgent press on the time of public servants, and the offenders have therefore been left to find their punishment in the public indignation. Nor was it uninteresting to the world, that an experiment should be fairly and fully made, whether freedom of discussion, unaided by power, is not sufficient for the propagation and protection of truth—whether a government, conducting itself in the true spirit of its Constitution, with zeal and purity, and doing no act which it would be unwilling the world should witness, can be written down by falsehood and defamation. The reason in league with false facts, the press, confined to truth, needs no other legal restraint; the public judgment will correct false reasonings and opinions, on a full hearing of all parties; and no other definite line can be drawn between the inestimable liberty of the press and its demoralizing licentiousness.42 The Prussian minister to the United States asked Jefferson why he didn't suppress a Federalist newspaper for attacking the president when he found it in Jefferson's office. Jefferson said, "Put the paper in your pocket, Baron, and should you ever hear the reality of our liberty of the freedom of the press questioned, show them this paper—and tell them where you found it."43 1806 The Boston Ladies Visitor proclaimed that it would be "closed against politics and obscenity and against everything which might cause the crimson fluid to stain the cheek of unaffected modesty."

1800 Through 1824 / 69 William Cobbett said: Ask the landlord of an ale-house why he takes the newspaper; he'll tell you that it attracts people to his house, and in many ways its attractions are much stronger than those of the liquor there drunk; thousands and thousands of men having become sots through the attractions of these vehicles of novelty and falsehood. u Thomas Jefferson commented in his partial autobiography titled the Anas: As to the attack excited against him [Aaron Burr] in the newspapers, I have noticed it but as the passing wind; that I had seen complaints that Cheetham, employed in publishing the laws, should be permitted to eat the public bread and abuse its second officer; that these federalist printers did not in the least intermit their abuse of me, though receiving emolumentfromthe government and that I have never thought it proper to interfere for myself, and consequently not in the case of the Vice President.45 1807 Thomas Jefferson wrote: I remember Mr. [Albert] Gallatin expressed an opinion that our negotiations with England should not be laid before Congress at their meeting, but reserved to be communicated all together with the answer they should send us, whenever received. I am not of this opinion. I think, on the meeting of Congress, we should lay before them everything that has passed to that day, and place them on the ground of information we are on ourselves. * Thomas Jefferson wrote, "Ours, as you know, is a government which will not tolerate being kept entirely in the dark." 47 Thomas Jefferson once wrote that within the pale of truth, the press is a noble institution, equally thefriendof science and civil liberty. Jefferson became thoroughly exasperated with the overwhelming Federalist press attacks. He described this frustration with the majority Federalist press in letters he wrote to John Norvell. He said: To your request of my opinion of the manner in which a newspaper should be conducted, so as to be most useful, I should answer: 'By restraining it to true facts and sound principles only.' Yet I fear such a paper would find few subscribers. General facts may indeed be collected from newspapers, such as that Europe is now at war, that Bonaparte has been a successful warrior, that he has subjugated a great portion of Europe to his will, &c, but no details can be relied on. An editor [should] set his face against the demoralizing practice of feeding the public mind habitually on slander, and the depravity of taste which this nauseous ailment induces. Nothing can now be believed which is

70 / Re-emergence of Free Expression seen in a [Federalist] newspaper. Truth itself becomes suspicious by being put into that polluted vehicle. The man who never looks into a newspaper is better informed than he who reads them; insomuch as he who knows nothing and is nearer to truth than he whose mind is filled with falsehoods and errors. He who reads nothing will still learn the great facts, and the details are all false. It is a melancholy truth, that suppression of the press could not more completely deprive the nation of its benefits, than is done by its abandoned prostitution to falsehood.48 Thomas Jefferson wrote: Conscious that there was not a truth on earth which I feared should be known, I have lent myself willingly as the subject of a great experiment, which was to prove that an administration, conducting itself with integrity and common understanding, cannot be battered down, even by the falsehoods of a licentious press, and consequently still less by the press, as restrained within the legal and wholesome limits of truth. This experiment was wanting for the world to demonstrate the falsehood of the pretext that freedom of the press is incompatible with orderly government.49 1808 Thomas Jefferson replied to an address that the liberty of speaking and writing guards our other liberties. Thomas Jefferson wrote: The [Federalist] papers have lately advanced in boldness and flagitiousness beyond even themselves. Such daring and atrocious lies asfillthe third and fourth columns of the third page of the United States Gazette of August 31st were never before, I believe, published with impunity in any country. However, I have from the beginning determined to submit myself as the subject on whom may be proved the impotency of a free press in a country like ours, against those who conduct themselves honestly and enter into no intrigue. I admit at the same time that restraining the press to truth, as the present laws do, is the only way of making it useful. But I have thought necessary first to prove it can never be dangerous.50 Judge James Kent said: Though the law be solicitous to protect every man in his fair fame and character, it is equally careful that the liberty of speech and of the press should be duly preserved. The liberal communication of sentiment, and entirefreedomof discussion, in respect to the character and conduct of public men, and of candidates for public favor, is deemed essential to the judicious exercise of the right of suffrage, and of that control over their rulers, which resides in the free people of these United States.51

1800 Through 1824 / 71 1809 A writer accused James Madison's administration of bias and said that the right which every government possesses to keep secret its intercourse and negotiations with foreign nations, so long as they are still pending, has been grossly abused by the present administration.52 1810 In his second message, Madison told Congress that it is universally admitted that a well-instructed people alone can be permanently a free people. 1811 Thomas Jefferson wrote that where thought is free in its range, we need never fear to hazard what is good in itself.53 Thomas Jefferson praised a newspaper favorable to his political views saying: The paper [The Aurora] has unquestionably rendered incalculable services to republicanism through all its struggles with the Federalists, and has been the rallying point for the orthodoxy of the whole Union. It was our comfort in the gloomiest days, and is still performing the office of a watchful sentinel.54 Thomas Jefferson refuted charges made by political enemies saying: In your letter it is read that, for certain services performed by Mr. James Lyon and Mr. Samuel Morse, formerly editors of the Savannah Republican, I promised them the sum of one thousand dollars. This is totally unfounded. I never promised to any printer on earth the sum of one thousand dollars, nor any other sum for certain services performed, or for any services which that expression would imply. I have had no accounts with printers but for their newspapers, for which I have paid always the ordinary price and no more. I have occasionally joined in moderate contributions to printers, as I have done to other descriptions of person, distressed or prosecuted, not by promise, but the actual payment of what I contributed.55 1812 Governor Elbridge Gerry of Massachusetts asked the legislature to pass a law clarifying libel matters. He said there had been 253 libels in Boston newspapers in a nine-month period. * Justice William Johnson, of the Supreme Court, speaking for the majority in a decision, indicated that federal courts could not exercise common law jurisdiction in criminal cases. This meant that federal courts had no jurisdiction over the common law of seditious libel.57 The Revolutionary War heroes—Richard Henry Lee and James Maccubin

72 / Re-emergence of Free Expression Lingan—attempted to defend The Federal Republican from a mob bent on its destruction. The mayor talked the defenders into going to jail for protection, but stood aside as the mob tore open the jail to assault them. General Lingan was killed and General Lee was maimed for life.58 1813 John Adams evaluated the role of the press thus: What do we mean by the Revolution? The War? That was no part of the Revolution; it was only an effect and consequence of it. The Revolution was in the minds of the people, and this was effected from 1760 to 1775, in the course of fifteen years before a drop of blood was shed at Lexington. The record of thirteen legislatures, the pamphlets, newspapers in all the colonies, ought to be consulted during that period to ascertain the steps by which the public opinion was enlightened and informed concerning the authority of Parliament over the colonies.59 Thomas Jefferson reported that the first misfortune of the Revolutionary War, induced a motion [in Congress] to suppress or garble the account of it. It was rejected with indignation. "The whole truth was given in all its details, and there never was another attempt in that body to disguise it." *° 1814 When Thomas Jefferson sold his library to Congress, his political foes charged that it was full of books which never ought to be read and probably should be burned.61 Jefferson became exasperated over a book as he explained to Nicholas Dufief: I am mortified to be told that, in the United States of America, the sale of a book can become a subject of inquiry, and of criminal inquiry too, as an offense against religion; that a question like this can be carried before the civil magistrate. Is this then our freedom of religion? And are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? Whose foot is to be the measure to which ours are all to be cut or stretched? Is a priest to be our inquisitor, or shall a layman, simple as ourselves, set up his reason as the rule for what we are to read, and what we must believe? It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason. If M. DeBecourt's book be false in facts, disprove them; if false in its reasoning, refute it. But for God's sake, let usfreelyhear both sides, if we choose. I know little of its contents, having barely glanced over here and there a passage, and over the table of contents. From this, the Newtonian philosophy seemed the chief object of attack, the issue of which might be trusted to the strength of the two combatants; Newton certainly not needing the auxiliary arm of the government, and still less

1800 Through 1824 / 73 the Holy Author of our rehgion, as to what in it concerns Him. I thought the work would be very innocent, and one which might be confided to the reason of any man; not likely to be much read if let alone, but, if persecuted, it will generally be read Every man in the United States will think it a duty to buy a copy, in vindication of his right to buy, and to read what he pleases.62 1815 General Andrew Jackson ordered Godwin B. Cotten, editor of The Louisiana Gazette, "no publication of the nature of that herein alluded to and censored will appear in any paper of this city unless the editor shall have previously ascertained its correctness and gained permission for its insertion from the proper sources." The editor had to destroy copies of the paper which had indicated the War of 1812 was over. He was ordered to print a retraction, but accompanied it with a sarcastic introductory paragraph.63 Thomas Jefferson wrote to James Monroe that: I hope that to preserve this weather-gauge of public opinion, and to counteract the slanders and falsehoods disseminated by the English papers, the government will make it a standing instruction to their ministers at foreign courts, to keep Europe truly informed of occurrences here, by publishing in their papers the naked truth always, whether favorable or unfavorable. For they will believe the good, if we candidly tell them the bad also. M A letter in The Louisiana Courier criticized Jackson's banishment of French persons from New Orleans; Jackson attempted to have the author, Louis Louaillier, sentenced to jail, but a judge issued a writ of habeas corpus. Jackson had the judge jailed, and several additional persons were subsequently jailed. No court martial or court would convict anyone, but Jackson kept people in jail or exiled them from the city until the Treaty of Ghent was ratified.65 1816 Thomas Jefferson said, "Where the press is free, and every man able to read, all is safe." * 1817 John Adams, a strong Federalist, stated that faction's views by saying, "When people talk of the freedom of writing, speaking, or thinking, I cannot choose but laugh. No such thing ever existed. No such thing now exists. I hope it will exist, but it will be hundreds of years from now."67 Joseph Dennie condemned newspaper content and readers in his "On News Mongers" in The Lay Preacher: In America, the impertinent eagerness for news should be scolded or

74 / Re-emergence of Free Expression laughed into moderation. The country gentlemen, at peace on his farm, unless far translationsfromthe Paris Moniteur, absurdly anxious for the welfare of the Frenchmen, skipping over the carcass of their king and country. Check your impertinent curiosity. Devote not your life to hearing and telling new things. If ye have business, mind it; are you masters of familiar, stay at home. Your heads are too shallow to contain the myriad of ideas ye wish. Action, not tattle, is the business of life. Dennie was considered the finest writer in America. 1821 Thomas Jefferson told Madison that a library book lasts as long as a house, for hundreds of years. M 1822 Connecticut passed an anti-obscenity law. 1823 Thomas Jefferson wrote to the Marquis de Lafayette that "The only security of all is in afreepress. The force of pubhc opinion cannot be resisted, when permitted freely to be expressed The agitation it produces must be submitted to. It is necessary to keep the water pure." ** Thomas Jefferson wrote, in discussing newspapers: These formidable censors of the pubhc functionaries, by arranging them at the tribunal of public opinion, produces reform peaceably, which must otherwise be done by revolution. It is also the best instrument for enlightening the mind of man, and improving him as a rational, moral and social being. There are certain principles in which the constitutions of our several States all agree, and which all cherish as vitally essential to the protection of the life, liberty, property, and safety of the citizen. [One is] Freedom of the Press, subject only to liability for personal injuries.70 Thomas Jefferson wrote: The only security of all is in a free press. The force of public opinion cannot be resisted, when permitted freely to be expressed. It is necessary to keep the waters pure. 7I

Chapter 7

THE BITTER CAUSES AND BITTER WAR 1825 THROUGH 1867 General Events and Perspectives 1826—Thomas Jefferson and John Adams both died on July 4. 1828—South Carolina declared it could nullify federal laws. 1831—Nat Turner was captured and hanged after leading a slave revolt in Virginia which had killed 57 white residents.l 1840—William Ellery Charming, a clergyman and reformer said that every mind was made for growth, for knowledge; and its nature is sinned against when it is doomed to ignorance.2 Freedom of Expression 1826 Abner Kneeland, a universalist pastor, said in a July 4th oration that the freedom of the press, under a benign Providence, is the great bulwark of our civil as well as our religious liberties.3 Thomas Jefferson said, "There is not a truth existing which I fear or would wish unknown to the whole world."4 James Madison wrote that the diffusion of knowledge is the only guardian of true liberty.5 In the last letter Thomas Jefferson wrote just ten days before his death, he still believed the unbounded exercise of reason and freedom of opinion assured the

76 / The Bitter Causes and Bitter War blessings and security of self-government. 1827 Freedom s Journal became the first newspaper pubhshed for and by Black Americans.6 Passage by the Massachusetts House and Senate of a law establishing truth as a libel defense finally established press freedom in that state. 1828 The first newspaper printed in an American Indian language was the Cherokee Phoenix, published in New Echota, Georgia.7 1829 In Pennsylvania 300,000 copies of newspapers were sold, one for every four persons. The Southern states enacted laws punishing expression intended to incite slaves to insurrection.8 1830 Editor James Gordon Bennett said, "The press is the living jury of the nation."9 William Ellery Charming said: The greatest truths are often the most unpopular and exasperating and were they to be denied discussion till the many should be ready to accept them, they would never establish themselves in the general mind. The progress of society depends on nothing more than on the exposure of time-sanctioned abuses which cannot be touched without offending multitudes: than on the promulgation of principles which are in advance of public sentiment and practice, and which are consequently at war with the habits, prejudices, and immediate interests of large classes of the community. The right of free discussion is therefore to be guarded by the friends of mankind with peculiar jealousy. It is at once the most sacred and most endangered for all our rights. He who would rob his neighbor of it should have a mark set on him as the worst enemy of freedom.10 Between 1830 and 1850, Southern states passed laws outlawing publication or possession of any item which possibly could incite a slave rebelhon. This included statements that slaves should be free. Imprisonment or lashing were the fines for first offenses; death was frequently exacted for second offenses.Il 1831 Congress provided that contempt could not be construed to extend to any cases

1825 Through 1867 / 77 except the misbehavior of any person or persons in the presence of the court or so near to obstruct the administration ofjustice. This law resulted from actions taken by Judge James Peck in citing Luke Lawless, an attorney, for contempt in a capricious and arbitrary manner, for a letter that had appeared in The Missouri Advocate and St Louis Enquirer in 1826. The Senate acquitted Peck of impeachment charges; Congress passed the law to forbid federal courts from filing or imprisoning editors or others for criminal contempt of court for publications censuring judges. n 1832 Benjamin Watkins Leigh, a prominent Whig, supposedly wrote a series of articles under the name "Appomattox" for the Richmond Enquirer concerning the slavery issue when the Virginia legislature allowed the silence of the press on that subject to be eased. Virginia permitted the publication of debates on the merits of slavery. This action infuriated other Southern states and their newspapers; but Virginia passed a law punishing the counseling in print of insurrection or rebellion among the slaves as a result of fears generated by the Nat Turner slave revolt. In 1836, Virginia passed strict laws against abolitionist literature.l3 Daniel Webster said, "The open attempt to secure the aid and friendship of the pubhc press, by bestowing emoluments of office on its active conductors, is a threat againstfreedomof the press, turning the palladium of hberty into an engine of party."14 1833 Thomas Cooper was forced to resign as president of South Carolina College for his rehgious views and publications. Earher he had been fired from the University of Virginia. President John Quincy Adams called him "a learned, ingenious, scientific, and talented madcap." I5 The Fruits of Philosophy or The Private Companion of Adult People by Charles Knowlton did much to revolutionize the sexual habits of the English-speaking world. Knowlton wasfinedin Taunton, Mass. While in jail, Knowlton wrote an appendix for the edition published by Abner Kneeland in 1833.16 1834 Aurora reported: "The free press is everybody's business*—its freedom is established in the great compact of July 4, 1776. Its freedom is essential to a free state—and that freedom comprehends the right of individual judgment upon all subjects which are within the reach of the human mind." 17 James Gordon Bennett, in discussing his New York Herald, said: This is the age of the Daily Press, inspired with the accumulated wisdom of the past ages, enriched with the spoils of history, and looking forward to a millennium of a thousand years, the happiest and most

78 / The Bitter Causes and Bitter War splendid ever yet known in the span of measured eternity. I am building up a newspaper establishment that will take the lead of all others that have ever appeared in the world.18 Abner Kneeland republished three essays of Ben Krapac without reading them thoroughly before placing them in his Boston Investigator. He was accused of blasphemy on the bases of isolated passage excerpted from the essays. Attorney Andrew Dunlap in defending Abner Kneeland said he has "the same legal right to the enjoyment, and the maintenance of his opinions, by his voice and his pen, which we claim for ourselves, as our political birthright, guaranteed by our glorious revolution; and proclaimed in our immortal Bill of Rights." 19 When Noah Webster published a Bible he cleaned up its language; for example, teats became breasts, piss became secretion or excretion, and whores became harlots.20 In Charleston, South Carolina, a meeting concluded that abolitionist editors were "no more entitled to the protection of the laws than the ferocious monster or venomous reptile."21 The mob which roughed up William Lloyd Garrison in Boston did not try to stop publication of his Liberator. Garrison said, "He who opposes the public liberty overthrows his own."22 President Andrew Jackson's seventh annual message to Congress December 7 appealed for legislation authorizing censorship of the mails. Administrative decisions by President Jackson and Postmaster Amos Kendall made to thwart abolitionist mail and activities, started a 100-year period of postal press control. M U.S. Postmaster Amos Kendall approved the refusal of Postmaster Hughes of Charleston, S. C. to circulate anti-slavery mail. u William Leggett, editor of the New York Evening Post, attacked Kendall's position establishing censorship of the press.25 Elijah Lovejoy was accused of smuggling abolitionist literature with a Bible shipment. M Massachusetts passed an anti-obscenity statute. Southern states asked Northern states to outlaw the printing of publications having a tendency to make slaves discontented. President Andrew Jackson asked Congress to prohibit the circulation by mail in the Southern states or any publication that would cause insurrections by slaves. Congress rejected this request, and similar measures in 1836. The number of vigilance committees to control anti-slavery

1825 Through 1867 / 79 expression grew rapidly.27 The Utica, N. Y, abolitionist Standard and Democrat was sacked. M 1836 The American Anti-Slavery Society published more than one million pieces of anti-slavery literature in 1836. w William S. Bailey's Free South plant was destroyed. M James Gordon Bennett, newspaper publisher, said, "I tell the honest truth in my paper, and I leave the consequences to God."3I A mob destroyed the press and offices of the Philanthropist, an anti-slavery newspaper produced by James Birney in Cincinnati, while officialdom gave tacit approval.32 William Ellery Charming, a Unitarian minister, became identified with the abolitionists even though he deplored their extreme positions. His understanding of the importance of freedom of the press and his analysis of the censorial mind were outlined following riots in Cincinnati.33 Cassius M Clay's True American was seized and he was driven from Kentucky.34 Postmaster Amos Kendall told postal officials that they could refuse to handle abolitionist publications. President Jackson asked Congress for a law prohibiting "incendiary pubhcations intended to instigate the slaves to insurrection," but Congress said no to the request.35 Elijah Lovejoy, "To establish our institutions of civil and religious liberty, to obtain freedom of opinion and of the press guaranteed by constitutional law cost thousands, yea, tens of thousands of valuable lives." M Judge Luke Lawless, said he was in favor of freedom of the press but believed the law should protect society from abuses of the press such as printing sermons against slavery.37 By 1836 all states in the South had moved to suppress abolitionist material tending to incite insurrection. Congress passed a law forbidding the Post Office to delay circulation of mail. M In Philadelphia, John Greenleaf Whittier had his shop wrecked and burned by a mob mad at his abolitionist Pennsylvania Freeman.39

80 / The Bitter Causes and Bitter War 1837 Edward Beecher said Lovejoy was the first martyr in America to the great principles of the freedom of speech and of the press. Lovejoy told a hostile audience that "as long as I am an American citizen, and as long as American blood runs in these veins. I shall hold myself at liberty to speak, to write and to publish whatever I please on any subject." *° William Cullen Bryant, poet and editor, said the right to discuss freely and openly, by speech, by pen, by the press, all political questions is a right so clear and certain, so interwoven with our other liberties, so necessary, in fact, to their existence, that without it we must fall at once into despotism and anarchy.4l Ralph Waldo Emerson, in commenting on the assassination of Elijah Lovejoy, said he "sternly rejoiced that one was found to die for humanity and the rights of free speech and opinion."42 Horace Greeley wrote that Elijah Lovejoy may well be deemed a martyr to public liberty. "We regard this not as a question connected with the abolition of slavery, but as a question vital to the liberties of the entire union."43 Elijah Lovejoy was killed by a mob for his anti-slavery publication, The Observer, which he edited at Alton, 111. u Wendell Phillips said: "No matter whose lips that would speak, they must be free and ungagged. The community which does not protect its humblest and most hated member in thefreeutterance of his opinions, no matter how false or hateful, is only a gang of slaves. If there is anything in the universe that can't stand discussion, let it crack."45 1838 James Fenimore Cooper, who hated American newspapers, said: The entire nation breathes an atmosphere of falsehoods. The country cannot much longer exist in safety under the malign influence that now over-shadows it; the press as a whole owes its existence to the schemes of interested pohtical adventurers. * Cooper also said: .. .is often made a matter of boasting, that the United States contains so many pubhc journals. It were wiser to make a cause of mourning, since the quality, in this instance diminishes in an inverse ratio to the quantity.47 Joseph A. Whitmarsh told a jury that no criminal libel law, neither common nor statutory libel law, existed in Massachusetts and none could be made until the state's constitution was altered. **

1825 Through 1867 / 81 1839 There were only about two dozpn blasphemy cases for the entire nineteenth century. Obscenity cases were very few. 1840 The Army and Navy Chronicle insisted that American newspapers couldn't be free institutions because they had to espouse a cause or support a political party to be financially sound. Daniel Webster said: "The entire and absolute freedom of the press is essential to the preservation of government on the basis of a free constitution." Webster described the function of a free press as "Given a free press, we may defy open and insidious enemy of hberty. It instructs the pubhc mind and animates the spirit of patriotism. Its loud voice suppresses everything which would raise itself against the public liberty, and its lasting rebuke causes incipient despotism to perish in the land."49 1841 James Fenimore Cooper has his character, Natty Bumppo say. "I prefer to see and judge for myself instead of letting every jaw that chooses to wag become my judge."50 Whoso would be a man must be a non-conformist. A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines, according to Ralph Waldo Emerson, who also said that every burned book enlightens the world, every suppressed or expunged word reverberates through the earth.51 William Henry Harrison said in his inaugural address, "A decent and manly examination of the acts of government should not only be tolerated but encouraged." Willis Hodges, a Black freeman, did white-washing in New York City to earn enough money to pubhsh two issues of his Ram s Horn newspaper. The New York Sun charged him $15 to pubhsh his letter-to-the-editor to print his reply to a proslavery editorial pubhshed in that newspaper which softened Hodges' comments.52 1842 Samuel Morse invented the telegraph. This device revolutionized news concepts and the function of journalism which became pegged to timeliness. A United States Customs law provided that custom officials were to keep out undesirable foreign daguerreotypes and photographs. Custom used this law also to keep out pubhcations it believed obscene. (The Tariff law prohibited all indecent and obscene prints, paintings, lithographs, engravings, and transparencies from being printed.)53

82 / The Bitter Causes and Bitter War 1843 A Black physician submitted anti-slavery letters and articles to a Pittsburgh newspaper which rejected them; consequently, he started his own newspaper.54 Henry H. Garnet, an editor and educator, said, "Let your motto be resistance, resistance, resistance! No oppressed people have ever received their liberty without resistance."55 1844 The Baltimore Patriot printed the first telegraphic news dispatch from Washington to Baltimore. * Suppression of the Nauvoo Expositor in Nauvoo, Illinois, led to the murder of Mormon leader Joseph Smith.57 1845 In December, Congress rescinded all the gag rules used to prevent abolitionist mail or discussion of slavery to enter Southern states. James Fenimore Cooper, a Democrat, was attacked repeatedly by the Whig press, including Horace Greeley's Tribune. He brought 14 libel suits between 1837 and 1845 against Whig newspapers and won most of them. The severe judgments started a move for more moderate libel laws. William H. Seward contended that American courts had widened the broad and dangerous definition of libel so much that it was impossible to justify any libel, however true. "This broad definition was an undue restraint of free expression in the public press," he said.58 Copperhead newspapers, named after a poisonous snake, felt the wrath of mobs in the North. The Democrat Standard was burned by New Hampshire Volunteers, soldiers back from the front. In Bangor, Maine the Weekly Democrat was sacked by a mob and Ambrose Kimball, editor of the Essex County Democrat was tarred and feathered in the middle of the night.59 Horace Greeley, editor of the New York Tribune, said. "Better incur the trouble of testing and exploring a thousand fallacies than by rejecting stifle a single beneficent truth." " 1846 The National Intelligencer claimed that Americans were the most enlightened people under the sun with 1250 newspapers serving 19 million people. 1847 In a prospectus for an anti-slavery paper to be titled North Star Frederick Douglas proposed to publish in Rochester, New York. He said, "The object of the North Star will be to Attack Slavery in all its forms and aspects: Advocate Universal

1825 Through 1867 / 83 Emancipation; exalt the standard of Pubhc Morahty; promote the Moral and Intellectual improvement of the COLORED PEOPLE; and hasten the day of FREEDOM to the three millions of our Enslaved Fellow Countrymen."6l 1848 An Associated Press organization to gather and distribute news was founded in New York City. James Russell Lowell, a poet, penned these lines: "Let liars fear, let cowards shrink, let traitors turn away. Whatever we have dared to think that dared we also say I do believe with all my soul in the great Press's freedom to point the people to the goal an' in the traces lead'em." 62 1849 JohnBanvard, an American artist, exhibited his 1,320-foot-long moving canvas of the Mississippi Panorama to Queen Victoria and her court. These moving panoramas were popular and impressive entertainment and a forerunner of the moving picture theaters 50 years later. Henry David Thoreau said that it takes two to speak the truth—one to speak and one to hear.63 1850 Rev. A.C. Coxe said he was opposed to any toleration of a popular and gifted write* when he perpetrated bad morals. "Let his brokerage of lust be put down at the very beginning." This reaction was part of the outcry over Nathaniel Hawthorne's Scarlet Letter. M Stereoscopes, devices for viewing photographs and creating a third-dimension quality by using two slightly different pictures, were developed and became popular throughout the century. They continued into the 1900s. Daniel Webster said: The press violent! Why, sir, the press is violent everywhere. They think that he who talks loudest reasons best. And this we must expect when the press is free, as it is here—and I trust always will be—for, with all its licentiousness and all its evil, the entire and absolute freedom of the press is essential to the preservation of government on the basis of a free constitution. Wherever it exists there will be foolish paragraphs and violent paragraphs in the press, as there are, I am sorry to say, foolish speeches and violent speeches in both Houses of Congress.65 1852 The first free library in the United States opened.

84 / The Bitter Causes and Bitter War Wendell Phillips, an abolitionist, said: We live under a government of men and morning newspapers. Let me make the newspapers and I care not what is preached in the pulpit or what is enacted in Congress. Eternal vigilance is the price of liberty. * 1854 WiUiam Lloyd Garrison, abrasive editor of the abolitionist Liberator, burned a copy of the Constitution as a "covenant with death and agreement with hell" since it permitted slavery.67 1855 Massachusetts finally passed a law accepting truth as a defense for libel. 1857 The American Railway Literary Union was organized to improve the type of literature available on thoroughfares and pubhc transportation. ** William S. Bailey published his anti-slavery Free South in Newport, Kentucky, for nine years butfinallyhad to give up after his shop was mobbed for the second time in 1859." Frederick Douglas, abolitionist editor, wrote: "Those who profess to favor freedom, and yet deprecate agitation, are men who want crops without plowing up the ground."70 Postmaster General J. Holt agreed that Virginia's law outlawing delivery of antislavery mail nullified the U.S. law forbidding delay of mail delivery as the U.S. Attorney General Caleb Cushing had ruled two years earher.71 A bode about slavery was suppressed butfinallypublished in 1864 after the Civil War. "We can print, publish, read, speak, listen to exactly what we please," the editor proclaimed in 1864.72 The Tariff Act added non-importation of images, figurines, photographs, and Greek statues of questionable taste.73 1858 Abraham Lincoln said, "No law is stronger than is the pubhc sentiment where it is to be enforced. Free speech and discussion, and immunity from whip and tar and feathers, seem imphed by the guarantee to each state of a 'republican form of government.'"74 The editor of the Weekly Anglo-African said the purpose of the New York Black newspaper was because: "We need a press—a press of our own. We need to know something else of ourselves. Through the press other than the every day statements

1825 Through 1867 / 85 made up to suit the feeling of our opponents."75 1860 Irwin Beadle created the dime-novel craze by publishing Edward Ellis' rousing tale of Seth Jones. Beadle and his brother published "books for the million! A dollar book for a dime." Seth Jones sold 400,000 copies. The editor of the Cairo, Illinois, Gazette dumped huge piles of written material on the floor of the military censor who demanded all copy be submitted in advance. The editor really didn't intend to publish any of it.76 Founding of the government printing office ended political patronage of newspapers via printing contracts. Scores of Northern newspapers were temporarily, or permanently, suspended during the Civil War by the United States Postmaster, and the War Department censored telegraph messages.77 P.B.S. Pinchback, an Army officer, said that Freedom is lost unless it is continually fought for.78 1861 Censorship was imposed after the battle of Bull Run. General McClelland tried a voluntary restraint system but this fell apart because of cheaters and a fuss between the United States State and War departments.79 Color photography began. The New York Postmaster refiised to handle mailing the Daily News, a severe critic of the Lincoln administration. The government even seized papers shipped by Railway Express. The effect was to put the paper, not related to the present New York Daily News, out of business for eighteen months. w Phillip Reis perfected the first telephone, but it languished as little more than a toy. 1862 Postmaster Montgomery Blair denied the use of the mails to newspapers he considered subversive, and telegrams were heavily censored by the military. General Ambrose E. Burnside had shut down the Chicago Times, but President Lincoln ordered him to rescind that action. The General curtly told the publisher that by direction of the President of the United States, my order suppressing the circulation of your paper is revoked. You are at liberty to resume publication.8l

86 / The Bitter Causes and Bitter War At a meeting of newspaper representatives in Washington, D.C., after a consultation with General McClelland, it was agreed that editors would refrain from publishing editorials or news about anything that would furnish aid or comfort to the South. This agreement constituted a rule of action for the censor of the press. Secretary Edwin M. Stanton ordered Harper s Weekly suspended for printing sketches of Yorktown under siege. w Secretary Edwin M. Stanton required reporters to submit articles to provost marshals who were supposed to take out only military information. But the various generals distorted this practice by insisting on a good press for them personally. General Henry Halleck expelled correspondents from the Union forces in the East. The 150 newspapers published by editors who called themselves Peace Democrats were constandy harassed by Union soldiers or civilian mobs who called papers the copperhead press. *° The editor of The Standard in Boone County, Missouri, had his press seized, and he was ordered out of the state by a military commission for encouraging resistance to the federal laws and government. M The War Department issued a general order forbidding the printing of any news whatever of camps, troops, or military or naval movements unless approved by a commanding general. Newspapers generally disregarded this order. Several generals, including William T. Sherman and Henry Halleck ordered all newspaper men out of the war area, although later on Sherman did relent and allow a few. General McClelland tried a partially successful gentieman's agreement for correspondents to restrain their coverage. A New York Herald reporter, Thomas Knox, was sentenced to six months for an article which displeased General Sherman. M 1863 Federal and state governments tried to keep incendiary material out of the mails. During the Civil War, Postmaster Blair removed from the mails or refused delivery of anti-Union writing, or material he considered obscene. Albert D. Boileau, editor of the Philadelphia Evening Journal, apologized for an editorial criticizing Lincoln and urging a negotiated peace, which he said was put in the paper without his knowledge. He was released from his military jail and was subsequently called a "collapsed martyr" by his former backers. w Major General William Butler suspended publication of the National Advocate in New Orleans for a day until Editor Jacob Butler was able to convince him the paper had not expressed unacceptable views about foreign intervention.

1825 Through 1867 / 87 General John Dix, New York marshall, suspended The New York World and The Journal of Commerce for publishing a false and forged presidential order for drafting 400,000 men, which was a hoax created by Joseph Howard, Jr., city editor of the Brooklyn Eagle, who thought he could manipulate the stock market for huge profits by the scheme. Abraham Lincoln promptly ordered the suppression revoked. ™ President Abraham Lincoln said: Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiry agitator, who induces him to desert. This is not the less injurious when effected by getting a father, or brother, or friend, into a pubhc meeting, and there working upon his feelings, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration or contemptible (sic.) Government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but withal, a great mercy. w President Abraham Lincoln believed Civil War restrictions imposed on the press would permanently damage First Amendment rights. He did disapprove heavy-handed censorship by Union generals. He told General Schofield, "You will only arrest individuals and suppress assemblies, or newspapers, when they may be working palpable injury to the mihtary; in no case will you interfere with the expression of opinion in any form, or allow it to be interfered with violently by others." Suppressions of the press had included mihtary, presidential, judicial, postal, and mob control of speech and press. Lincoln once said, "Let the people know the facts and the country will be safe."89 The New York Journal of Commerce claimed Lincoln had so many editors arrested with no habeas corpus that the names would fill eighteen columns. ** The New York press remained relatively free of censorship during the Civil War. Northern papers elsewhere were even freer. In Chicago, the Times was closed down three days, and the copperhead Philadelphia Evening Journal was suspended and went out of business. In New York some Times staff members helped the Tribune repel a mob attack.9I 1864 Congress passed a law that said mailing obscene material was criminal and the sender could be fined and jailed. There were at least 46 books of an erotic nature published in the United States between 1800 and 1865. Nathaniel Currier and James Ives were pioneers in pictorial journalism. Their pictures of news events were sold at news stands throughout the nation. There were at least 60 cases of threats and violence against Northern newspapers

88 / The Bitter Causes and Bitter War and editors from angered citizens and soldiers during the Civil War. When Lincoln was assassinated in April, mobs attacked copperhead newspapers, destroyed presses, tarred and feathered editors, and threatened to lynch them. 1866 President Andrew Johnson vetoed a Civil Rights Act, but its provisions became the Fourteenth Amendment in 1868. A radio system of signaling was developed by Mahlon Loomis of Washington, D.C. The trans-Atlantic telegraph cable was completed. 1867 New York passed a statute to suppress obscene literature because the YMCA believed city young men had weaknesses for poker, prostitutes, vile weekly newspapers, and licentious books. The ticker tape machine was developed.

Chapter 8

THE FOURTEENTH AMENDMENT 1868 THROUGH 1899 General Events and Perspectives 1868—The Fourteenth Amendment was ratified Ohio soon thereafter voted to rescind it.1 1871—The Civil Rights Act provided that every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof or the deprivations of anyrights,privileges, or immunities secured by the Constitution and law, shall be hable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Freedom of Expression 1868 John Bingham, Ohio, and Jacob Howard, Michigan, drafted the Fourteenth Amendment to insure that all guarantees in the Bill of Rights, and especially the First Amendment, were applied to state laws and actions. The new amendment was adopted in 1868. 2 Robert E. Lee, who became president of Washington College which later became Washington and Lee University, instituted a journalism curriculum to prepare male graduates to be journalists. Thus, formal journalism professional education began. The Post Office assumed broad discretion to barfromthe mails whatever its officials believed obscene.

90 / The Fourteenth Amendment In South Carolina in the reconstruction period of 1868, printing fraud was extensive. Money paid for pubhc printing in 1868 and 1876 was $ 1,326,589, more than the state had paid out between its establishment and 1868. 1870 Mayor Oakley Hall forbade news stand sales of Harper s Weekly in New York City because of its attacks on the William Tweed ring. "It is a newspaper's duty to print the news, and raise hell," according to Wilbur Storey, editor of the Chicago Times.3 Typewriter manufacturing began. 1871 Thomas M. Cooley said the liberty of speech and press is a right to utter freely and to publish whatever the citizen may please. "The citizen is protected against any responsibility for so doing, except so far as such pubhcations because of blasphemy, obscenity, or scandalous character, may be a pubhc offence, or by falsehood and malice they may injuriously affect the standing, reputation or pecuniary interests of individuals," he said.4 The Senate imposed imprisonment upon two New York Tribune men for refusing to reveal the name of a senator who had given them a copy of a secret treaty. 1873 The Supreme Court eliminated the application of the Fourteenth Amendment to the rights in the Bill of Rights, including those of the First Amendment in the Slaughterhouse Case. 5 The Comstock Act outlawed obscene, lewd, and lascivious publications; and birth control information was barred from the mails.6 The Comstock Act, the principal American anti-obscenity legislation, was passed by Congress. It pertained to the publication of materials deemed "obscene, lewd, and lascivious." Anthony Comstock's committee became the New York Society for the Suppression of Vice with a state charter and support from bankers and manufacturers. Comstock became a full-time special agent of the Post Office with police power to make arrests. Comstock had as his motto "Morals, Not Art or Literature." He beheved if you open the door to anything, thefilthwill pour in and the degradation of youth will follow.7 The New England Watch and Ward Society and the New York Society for the Suppression of Vice were founded to pressure publishers to reject controversial authors.8

1868 Through 1899 / 91 John Biddulph Martin sought a court order to stop circulation of The BeecherTilton Scandal because he believed it libeled his wife Victoria Claflin Woodhull.9 The New York Society for the Suppression of Vice reported it had seized 130,000 pounds of bound books and 60,300 articles made of rubber for immoral purposes. Anthony Comstock was assaulted and stabbed. He had traveled 23,500 miles by rail in his efforts to stamp out obscenity.10 Boss William Tweed's representatives carried his traditional black bags of bribing money to 84 newspapers, some of which had to have that money to survive. 1875 Boston set up the New England Watch and Ward Society, and Philadelphia set up a vice suppression society as did Cincinnati, Cleveland, St. Louis, Louisville, Chicago, Rochester, Providence, Detroit, Toledo, San Francisco, and Portland. n The Civil Rights Act of 1875, providing that all persons he given equal rights and privileges in public places, was declared unconstitutional by the Supreme Court in 1883. Republik der Arbeiter, a German-language publication, was the first socialist newspaper in America. Mark Twain had an editor character in his sketch on "Journalism in Tennessee" say, after he had shot a man, to his assistant: Jones will be here at three—cowhide him. Gillespie will call earlier, perhaps—throw him out the window. Ferguson will be along about four—kill him. That is all for today, I believe. If you have any odd time, you may write a blistering piece on the police. The cowhides are under the table, weapons in the drawer, ammunition there in the corner, lint and bandages up there in the pigeon holes. In case of accident, go to Lancet, the surgeon, downstairs. He advertises: we take it out in trade n Victoria Claflin Woodhull and her sister Tennessee Claflin contended that vulgarity and obscenity are in the minds of those who complain about them.13 1876 Thomas Edison patented the first "talking machine." Crammond Kennedy said the press is shorn of its real power by the abuse of hberty.14 1877 A. Bronson Alcott, writer, said, "That is a good book which is opened with expectation and closed with profit." 15

92 / The Fourteenth Amendment President James A. Garfield said, "The press and the telegraph will tomorrow morning announce at a million breakfast tables what has been said and done in Congress today." 16 David Hughes discovered the basic principle of wireless telegraphy or the electrical behavior of a bad contact. He used this in a microphone. 1878 President James A. Garfield said, "Not only for its own sake alone, but for the sake of society and good government, the press should be free. Publicity is the strong bond which unites the people and their government. Authority should do no act that will not bear the light." 17 U.S. Postal Second Class Mail Regulations of 1878 pressured many noncommercial publications out of operation. 1879 A National Defense Association was formed to fight Anthony Comstock and his New York Vice Society. Postal regulations stipulated that a publication must be for the dissemination of information of public character, or devoted to literature, the science, arts, or some special inquiry, and have legitimate subscribers to enjoy low rate second class mailing privileges. The Senate fired its chief executive clerk James Young for revealing secret proceedings to a correspondent of the Philadelphia Star. Mark Twain pointed out that it takes a heap of sense to write good nonsense. 18 1880 Anarchist editors were hanged in Illinois, and John Mort's New York Freiheit was suppressed because of its anarchistic propaganda. Truth, an anarchist publication, had the motto: "Truth is 5 cents a copy and dynamite is 40 cents a pound." 19 John Profatt said: Freedom of the press is no longer a blessing but operates a dangerous and unrestrained vituperation of private character in the publication of much that is vile and demoralizing, and the misrepresentation of public men and measures.20 * 1882 The American Railway Literary Union produced a guide to suppress pernicious literature. Walt Whitman's Leaves of Grass was banned in Boston.22

1868 Through 1899 / 93 1883 The Post Office barred Dr. Foote 's Health Monthly from the United States mails because of its discussion of sex. He tried to use Canadian post offices. A new postmaster, however, reversed the earlier suppression of the magazine. M Publisher Joseph Pulitzer proclaimed: The entire World newspaper property has been purchased by the undersigned and will from this day be under different management—different in men, measure, and methods*—different in purpose, policy, and principle—different in sympathies and convictions—different in head and heart. There is room in this great and growing city for a journal that is not only cheap but bright, not only bright but large, not only large but truly democratic—dedicated to the cause of the people rather than to that of the purse potentates—devoted more to the news of the New than to the Old World—that will expose fraud and sham,fightall pubhc evils and abuses—that will battle for the people with earnest sincerity. In that cause and for that and solely the New World is hereby enlisted and committed to the attention of the intelligent public.24 Carl Schurz's words placed on the inscription of the pediment of the St. Louis Municipal Auditorium said: Democratic government will be more successful the more the public opinion ruling it is enlightened and inspired by full and thorough discussion. The greatest danger threatening democratic institutions comes from those influences which tend to stifle or demoralize discussion. 1884 John Bascom complained that greater freedom of the press had eliminated legal protections of personal rights.25 Anthony Comstock contended that exposure to pornography meant moral and physical ruin for young people and that his organization could suppress such materials. He began his campaigns in 1868 and from 1873 on he was the acknowledged leader of the zealots. He was the agent for the New York Society for the Suppression of Vice and lobbied into passage the federal "Comstock Law" in 1873. He developed techniques of seizure and arrest as a special and unpaid agent of the Post Office. And he fought the "liberals" who he considered to be the colleagues and followers of Robert G. Ingersoll. * Ottmar Mergenthaler patented the linotype in Baltimore. 1885 Edward Zeus Franklin Wickes convinced a grand jury in Boston that his book,

94 / The Fourteenth Amendment Illustrated Domestic Medical Counsellor, was a serious sex education book and not obscene.27 1886 President Grover Cleveland said, "The silly, mean, and cowardly lies that are every day found in the columns of certain newspapers violate the instinct of American manliness, and in ghoulish glee desecrate every sacred relation of private life."28 Henry Ward Beecher, a popular preacher, said, "Nowhere else can one find so miscellaneous, so various, an amount of knowledge as is contained in a good newspaper."29 Henrich Hertz provided experimental proof of the Faraday-Maxwell hypothesis that electrical waves could be projected through space, only eight years after James Maxwell's death. Tolbert Lanston patented the monotype typesetter in Troy, Ohio. Charles B. Reynolds, afreethought lecturer, was tried, convicted, and fined under state law for issuing a blasphemous work which was a satirical pamphlet circulated in Morristown, New Jersey.30 Walt Whitman's Leaves of Grass was charged with obscenity. Only the Library Company of Philadelphia had bought a copy; all other libraries censored it.31 1888 Thomas M. Cooley said: The freedom of the press was undoubtedly intended to be secured on pubhc grounds, and the general purpose may be said to preclude those in authorityfrommaking use of the machinery of the law to prevent full discussion of political and other matters in which the public are concerned.32 Robert L. Owens, a United States Indian agent, said, "The tendency toward public discussion is like the sun piercing the clouds. It will create intelligent public opinion and moderate partisanship."33 1889 WK.L. Dickson developed the first successful motion picture camera. W.S. Lilly, a Pennsylvania congressmen, said that censorship of the press is as antiquated as mail armor.34 T. DeWitt Talmadge, a well-known clergyman, attacked books for their influence on young people, by saying:

1868 Through 1899 / 95 Cursed be the books that try to make impurity decent, and crime attractive, and hypocrisy noble. Cursed be the books that swarm with libertines and desperadoes, who make the brain of the young people whirl with villainy. Ye authors who write them, ye publishers who print them, ye booksellers who distribute them, shall be cut to pieces, if not by an aroused community, then, at last by the hail of divine vengeance, which shall sweep to the lowest pit of perdition all ye murderers of souls. If there is anything in your library that is evil, author, do not give it away, for it might spoil an immortal soul, do not sell it for the money you get would be the price of blood; but rather kindle a fire on your kitchen hearth, or in your back yard, and then drop the poison in it, and keep stirring the blaze until from preface to appendix there shall not be a single paragraph left.35 1890 The Brooklyn Pubhc Library barred Mark Twain's Adventures of Tom Sawyer, The Adventures of Huckleberry Finn, and Tom Sawyer s Comrade. Criminal libel actions in state supreme courts reached their peak in the decade between 1890 and 1900, with more than 100 cases. There were 20 such cases between 1871 and 1880 and 74 between 1881 and 1980. But such cases almost disappeared by 1950. M Charles Dana said: There is a great disposition in some quarters to say that the newspapers ougbt to limit the amount of news they print; that certain kinds of news ought not to be pubhshed. I have always felt that whatever the Divine Providence permitted to occur, I was not too proud to report.37 T. Thomas Fortune, a Black editor, wrote: A sufficient answer to all those who do not understand why we have colored newspapers, would seem to be the fact that white men have newspapers; that they are published by white men for white men; given the main news about white men, and pitch their editorial opinions entirely in the interest of white men. M The Post Office attempted to keep Leo Tolstoy's Kreutzer Sonata out of the mails, thus boosting its circulation greatly.39 Frank Trigg, a Black professor, said, "Were it not for the Negro press, the country would be in comparatively total darkness as to the Negroes' real conditions." m The U.S. Attorney General declared that the Comstock Act could be used by the Post Office to censor the mails.41

96 / The Fourteenth Amendment 1891 Julian Hawthorne said, "It would be better to have the country flooded with genuine vicious and obscene hterature than to establish the precedent of imprisoning men for publishing their honest opinions."42 Author George Moore said, "The one invincible thing is a good book; neither malice nor stupidity can crush it."43 The National Reform Press Association served 1,000 Populist newspapers with syndicated materials. Comic strips began appearing in the New York World. 1893 Anthony Comstock said: Hark! What sound is this that drowns out Niagra? It is the whirl, the united whirl, of the devil's printing press—as it is striking off millions of pages of printed matter to infatuate our boys and girls; to defile their minds; to corrupt their thoughts; to pervert their imaginations, to sear their consciences, harden their hearts, and damn their souls. " Thomas Edison invented kinescope motion pictures. Herbert Spencer said, "So long as he does not suggest the commission of crimes, each citizen is free to say what he pleases about any or all our institutions —even to the advocacy of a form of government utterly different from that which exists, or the condemnation of all governments."45 The William Tweed ring attempted to throttle The New York Times by buying up a majority of its stock, indicting the paper for libeling the mayor, and taking over the Times building. The New York Legislature passed a law to revive libel of the government, but the governor vetoed it. 1894 United States military officials applied severe censorship at the time of the Philippine insurrection. 1895 The Populist movement produced 900 newspapers and other publications for its farmer followers. * 1896 Educator Charles W Elliott said, "Books are the quietest and constant of friends and the most patient teachers."47

1868 Through 1899 / 97 Thefirstattempt of censoring a motion picture involved the large screen version of a kiss by May Irwin and John C. Rice. ** The National Purity Congress was a forerunner of modern social hygiene movements. It criticized the press for publishing theater news and advertising the immoral stage.49 Reported guarantees of confidentiality of news sources have existed since 1896. Thefirstmovie theater of consequence was Vitascope Hall, a 400-seat theater in New Orleans. 1897 Governor John Peter Altgeld said, "Freedom of thought and freedom of speech in our great institutions of learning are absolutely necessary. The moment that either is restricted, hberty begins to wither and die and the career of a nation after that time is downward." x 1898 William Randolph Hearst and Joseph Pulitzer turned their newspapers into jingoistic pro-war publications as yellow journalism flowered. But Pulitzer withdrew from such exploitations. He challenged Theodore Roosevelt for seizing Panama, and fought Teddy's unsuccessful libel suit to strike a final blow for press freedom.5I 1899 The California penal code required that articles reflecting on the personal or professional reputation of persons had to identify the author. A musical publication complained that: A wave of vulgar, filthy and suggestive music has inundated the land with its obscene posturing, its lewd gestures. Our children, our young men and women, are continually exposed to the monotonous attrition of this vulgarizing music. It is artistically and morally depressing and should be suppressed by press and pulpit.52

Chapter 9

WORLD WAR I AND CENSORSHIP 1900 THROUGH 1924 General Events and Perspectives 1903—Helen Keller, a blind author, said that the heresy of one age becomes the orthodoxy of the next. She also said, "The highest result of education is tolerance."1 1904—G. Stanley Hall, president of Clark College, managed to become president of the New England Watch and Ward Society and used that blue organization to promote sex education.2 1912—A nationwide public opinion poll was attempted with some success. 1913—J. B. Bury said, "If the history of civilization has any lesson to teach it is this: There is one supreme condition of mental and moral progress which it is completely within the power of man himself to secure, and that is perfect liberty of thought and discussion."3 1914—W.E.B. DuBois, historian and writer, said, "Freedom is a state of mind, a spiritual unlocking of the wells of human power and superhuman love."4 1916—Edgar Lee Masters, a writer, said, "He only wins hisfreedomand existence who each day conquers them anew."3 1917—The National Civil Liberties Bureau, forerunner of the American Civil Liberties Association, was established under the direction of Roger Baldwin. Several people disturbed by wartime repression helped form the bureau. Many federal officials also joined congressmen in disapproving Post Office rules and denial for mailings.6

1900 Through 1924/99 1919—Zechariah Chafee, constitutional law scholar, said, "One of the most important purposes of society and government is the discovery of truth on subjects of general concern. This is possible only through absolutely uninhibited discussion."7 1920—Edwin G. Conklin said: The aim of real science, as well as of true religion, is to know the truth confident that even unwelcome truth is better than cherished error, that the welfare of the human race depends upon the extension and diffusion of knowledge among men, and that truth alone can make us free.8 John Dewey, educator and philosopher, wrote: Because liberty is essentially mental, a matter of thought, and because thought is free only as it can manifest itself in act, every struggle for liberty must be reenacted on a different plane. The old struggle for liberty of speech, assemblage and publication was significant because it was part of a struggle for liberty of worship and security of property. Freedom of speech is now significant because it is part of the struggle for freedom of mind in industry, freedom to participate in its planning and its conduct. 9 Samuel Gompers, labor leader, said, "I hold a jail more roomy in the expression of my judgment and convictions than would be the whole world if I were to submit to suppression and be denied the right to express myself." 10 At least 10,000 persons serving as organizers for labor unions or socialist organizations were arrested in the Palmer raids, but the big "red" scare of supposed radical danger which erupted after World War I disappeared and was forgotten by the end of 1920. n 1921—The Sedition Act of 1917-18 was repealed.12 Freedom of Expression 1900 Stephen Crane's Maggie, A Girl of the Streets was heavily expurgated before it could be published in 1900. All branches of federal and state governments were participating some way in the suppression of obscenity and of materials dealing with sex. James R. Osgood canceled a contract to publish an edition of Walt Whitman's Leaves of Grass when The Watch and Ward Society of Boston had a Boston district attorney complain about it.13

100 /World War I and Censorship 1901 Carry Nation, prohibitionist, when being jailed in Barber County, Kansas, said, "You put me in here a cub, but I will come out roaring like a lion, and I will make all hell howl." Josiah Flynt Willard's magazine article, "The World of Graft," appeared in McClure s Magazine at the beginning of the era of the muckrakers. 1902 Lincoln Steffen's magazine articles exposed corruption in the political life of St. Louis and marked the beginning of his career as a muckraker. Investigative and depth reporting became highly developed and was popular with readers.14 Sutton E. Griggs, a Baptist minister, said, "It often requires more courage to read some books than it does to fight a battle." l5 New York imposed penalties on publications about anarchy as its reaction to President McKinley's assassination. Four states had laws to punish advocacy of the violent overthrow of the government.l6 Gov. Samuel W Pennypacker signed a Pennsylvania libel law to stop criticism of state officials in a deliberate attempt to terrorize the press and stifle public comments. 17 The Post Office denied second-class mailing privileges to weekly journals edited by persons it considered to be "cranks." 18 1903 New York's state criminal anarchy law was only used once. The law's purpose was to punish radical agitators who were American citizens. President Theodore Roosevelt convinced Congress to pass the 1903 Immigration Act to bar or deport anyone who advocated overthrow by force or violence of the United States government. Even so, he said: If there is one thing we ought to be careful about it is in regard to interfering with the hberty of the press. I think it is a great deal better to err a little bit on the side of having too much discussion and having too virulent language used by the press, rather than to err on the side of having them not say what they ought to say, especially with reference to public men and measures. I9 Ida Tarbell's book, The History of the Standard Oil Company, exposed some of the illegal and exploitive practices of big business. The book helped promote legislation against monopolies.20

1900 Through 1924/101 1904 Ira Rubel of Nutley, New Jersey, built an offset-lithography rotary printing press for the Eastern Lithographic Company. 1905 Samuel Hopkins Adams claimed that patent medicine advertisers and newspapers conspired to suppress reporting any detrimental information about the drug industry. The article helped lead to the enactment of the Food and Drug Act of 1906.21 Anthony Comstock tried to suppress George Bernard Shaw's play, Mrs. Warren s Profession, but failed to get "the Irish smut-dealer and foreign writer of filth" convicted. Shaw derided the effort as "Comstockery."22 Newsreels were developed for motion picture theaters. The first newsreel reported a fight between Young Griffo and Battling Carnett. 1906 Alexander Hill said pubhc libraries should keep out bad books just as they would bad men and should reject books that are poisonous to the moral nature.23 Mark H. Judge contended that "the freedom of the press is a jewel to be maintained at all cost, but the publication of false news is no more to be associated with freedom than theft is to be associated with free exchange."24 Assistant General Edwin C. Madden denied second-class mailing privileges to iholndianapolis Union Signal because it was a union publication which he believed did not disseminate information of a public character. The first radio broadcast was of Christmas music presented by Prof. Reginald Fessenden at Brant Park, Massachusetts, on December 24, and beamed to ships in the Atlantic.25 Theodore Roosevelt coined the name "muckrakers" for writers who raked up news like a character did in John Bunyon's Pilgrim s Progress.26 Theodore Schroeder intensified his efforts to champion a completely free press through writing and speaking. Natural rights and moral and social progress underlaid his insistence on unrestricted and unpunished speech and press except when it would be determined that words had inseparably accompanied some attempted or achieved violence to person or property. He believed it was anathema for government authorities to have power to decide whether words were criminal, on the basis of an ex-post facto guess about the words' psychological tendency to do damage. He wrote untiringly against punishing radical attacks on government and blasphemous attacks on religion, but he was most concerned with the law of obscenity and the activities, suppressions, attitudes, and long-term effects of the Anthony Comstock organizations

102 /World War I and Censorship and their followers.27 Upton Sinclair's novel, The Jungle, exposed conditions in America's meat packing plants and helped lead to passage of the nation's first pure food laws.28 Thaddeus B. Wakeman, a leader in the National Liberal League, believed the Comstock law was a threat to thefreedomof the press, a violation of the Bill of Rights, a merging of church and state, and an offense to humanity. 29 1907 Chicago set up a movie censorship ordinance to determine if movies were morally acceptable. Police were the censors.30 Josephus Daniels said: Mr. Jefferson's contribution to the free press was not bounded by geographical lines or limited to any period of time. It was for all countries and all ages. In his life, whether laboring in the land of his birth to obtain, safeguard and make permanent, the freedom of the press, or seeking to aid the people of France, groping through the darkness with only the gleam of a censored press, to secure "the liberty of speaking and writing which guard all other liberties," he was always animated by faith in the capacity of man to control his own affairs, and by his oath of "eternal hostility against every form of tyranny over the human mind." 31 Joseph Pulitzer, upon retirement, said he believed The St. Louis Post-Dispatch: will always fight for progress and reform, never tolerate injustice or corruption, always fight demagogues of all parties, never belong to any party, always oppose privileged classes and public plunderers, never lack sympathy with the poor, always remain devoted to the public welfare, never be satisfied with merely printing news, always be drastically independent, never be afraid to attack wrong, whether by predatory plutocracy or predatory poverty.32 Clinton R. Woodruff contended that the government should protect the public against billboards which were esthetically or morally offensive.33 1908 Arthur Bostwick, president of the American Library Association, urged that all books which had an immoral tendency be suppressed.34 Bram Stocker, author of Dracula, said that the lack of restraint in modern hterature might require censorship. "If no other method can be found to eradicate the plague spot infiction,even pohce censorship, obnoxious as it is, may be inevitable."33

1900 Through 1924/103 Mayor George B. McClellan closed all 500 motion picture theaters in New York City on December 24 because he thought they were unclean and immoral. A court ordered them reopened in three days, but the mayor started New York motion picture censorship. Post Office rules for second-class mail in 1908 hampered the circulation of pubhcations by restricting overdue subscriptions and free copies to 10 percent of the total number of copies mailed. President Theodore Roosevelt attempted to prosecute the New York World and The Indianapolis News for criminal libel. He lost the Indianapolis case so convincingly that the one against Joseph Pulitzer was dropped. Roosevelt revived sedition in his displeasure about articles and editorials concerning corruption in the purchase of the Panama Canal company from France.36 1909 A thorough revision of United States copyright laws made ownership of materials clearer and stronger. Alan Dale said, "Our moral censors are so busy denouncing the evils of the stage that they never find time to advise us to see the fine and inspiring products.37 A nationalfilmcensorship board was formed in the United States by the People's Institute of New York City. This was a self-appointed group whose views were accepted by the movie industry. George White said freedom of the press meant "freedom to write and publish anything on any conceivable subject—not one bar, not one tiniest taboo, not one darksome cranny or corner hidden from the frankest scrutiny."38 The Wireless Ship Act, first radio legislation, spurred development of the radio industry, increased radio research, and caused Congress to recognize radio's potential.39 1910 Court-approved press and speech restraints were carried out against militant union bodies such as the International Workers of the World, and radical organizations such as the Socialist Party and the Non-Partisan League. The I. W W published at least 70 newspapers and periodicals. w Theodore Roosevelt said in a speech in Milwaukee, "In our country, I am inclined to think that almost, if not quite, the most important profession is that of the newspaper man, including the man of the magazine, especially the cheap magazines, and the weeklies."4l

104 /World War I and Censorship 1911 When Professor Enoch M. Banks wrote an article stating that the intellectuals of the South could have made the Civil War unnecessary if they would have taken the slavery question in hand, the University of Florida fired him.42 The federal law code made it a crime to publish matters of a character tending to incite arson, murder, or assassination, and the Postmaster general could deny the mails to pubhcations containing such matter. This law was designed to control and suppress anarchistic publications. Between its ratification in 1791 and 1911 no cases directly involving the First Amendment reached the Supreme Court. William J. Gaynor said freedom of speech and of the press means freedom to speak and write the truth, not falsehood or abuse.43 Edgar Watson Howe, in Country Town Sayings, said, "The liberty of the press is most generally approved when it takes liberties with the other fellow, and leaves us alone."44 Truth Seeker magazine contended that liberty included the right to use scurrilous language.45 1912 Theodore Dreiser's novels, Carrie, The Titan and The Genius, were withheld or removed from book stores. * The National Association of Manufacturers claimed that the typographical union was planning to acquire complete newspaper control throughout the United States just as surely as it had established a stranglehold on New York City newspapers.47 Newspapers were apprehensive of government controls when postal legislation required them to state their business conditions in the semi-annual report they had to publish to maintain second-class mailing privileges. Congress had passed statutes which required newspapers, magazines, periodicals, and publications to list their owners and creditors. ** The first radio-licensing law authorized the Secretary of Commerce to license radio stations. Self-censorship by stations eliminated lewd jokes and birth control information.49 The Secretary of Commerce and Labor was authorized to license radio stations on the basis of ownership, location, purpose, hours of operation, andfrequencyby the Radio Act of 1912, which included 20 radio broadcasting regulations. It established the international SOS signal and required that all radio stations get a license from the

1900 Through 1924/105 Secretary of Commerce and Labor.50 There were 300 Socialist publications, and this number grew to 600 by the beginning of World War 1.51 WEAF stopped news broadcasts by H. V. Kaltenborn because AT&T thought it was proper to submit to a government request.52 1913 Lee De Forest developed his grid that made it possible to amplify wireless signals and made radiotelephony and broadcasting possible.53 Ohio and Kansas set up state movie censorship boards. Theodore Schroeder said, "Obscenity is not a quality inherent in a book or picture, but solely and exclusively a contribution of the reading mind, and hence cannot be defined in terms of the qualities of a book or picture."54 1914 James A. Field said, "The prosecutors of William and Margaret Sanger presumably hoped to check the propaganda of birth control. The obvious effect of the prosecutions has been to provoke a more widespread, outspoken and sympathetic discussion of this crucial subject than had before been ventured in the United States."55 Amy Lowell, a critic and poet, said, "All books are either dreams or swords. You can cut, or you can drug, with words."56 The New York Evening Post, said, "That any ideal censorship could ever be worked out, we very much doubt, for it is founded on suppression, deceit, and concealment; but there are instances in which it has worked well." There were 2,500 daily newspapers in the United States. Newspapers insisted that the public should be trusted with war news, but the government censors suppressed all reports of military reverses or disasters. Private radio broadcasting during World War I was discontinued and broadcasting was reserved for the United States Navy.57 Margaret Sanger's The Woman Rebel was suppressed by the Post Office because it contained information about birth control.58 Theodore Schroeder told the Senate Industrial Relations Committee that: We have less conceded and protected freedom of speech and of the

106 /World War I and Censorship press in the United States than in any country in the world at any time in the history of the world. Freedom of speech means no man should be punished for any expression of opinion on any subject so long as the consequences of that speech is nothing but the creation of a state of mind in someone else.59 Henry Schofield said, "Our own judges seem to have forgotten that the founders of the government are not distinguished for their reception of the English common law but for their adaption of the democratic leaning and tendency of the constitutional side of it." To jurists such as Blackstone, Mansfield, and Kenyon, licentiousness of the press meant the fabrication and spreading of falsehood in matters of fact, according to Schofield.» During World War I more than 1,900 sedition prosecutions involving speeches, newspaper articles, pamphlets, and books were started; 800 persons were convicted; the postmaster refiised mailing privileges to 100 publications, including 50 socialist newspapers.61 Between the expiration of the Sedition Act in 1801 and 1917, there were no federal sedition prosecutions in the United States. Guy E. Shipler left the newspaper profession for the ministry because of the control of the paper by advertisers, businesses, and department stores.62 1915 By the time Anthony Comstock died in 1915, he had destroyed at least 150 tons of literature he considered obscene.63 John Collier said: Censorship (of movies) is impracticable and dangerous because the means involved are indeed largely unrelated to the ends sought, and because the indirect damage of censorship infinitely exceeds the direct good which may be accomplished. ** The 2,600 daily newspapers and the other 14,400 newspapers of different frequencies reached the high record mark of United States newspaper publishing.65 Edward A. Ross said, "For organized society to allow the weapon of a free press to be wrenched from the hands of the laboring class in their struggle against oppression, constitutes connivance in one of the greatest inequities that could be committed." * Henry Schofield said the 1798 Sedition Act demonstrated that spokesmen of minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of protection of the

1900 Through 1924/107 law against a hostile, arrogant majority 67 John S. Sumner succeeded Anthony Comstock as head of the New York Society for the Suppression of Vice. He said: I shall go after the sellers and distributors of indecent pictures and cards and hterature just asfiercelyas he ever did. The Society is an agency to enforce the law where it is violated. It is not a censor. I see the need of protection for the young from the temptations of pandering enterprises which assault their eyes and ears. The judiciary should be aroused to the fact that the safeguarding of public morals is much more important than upholding alleged freedom of expression or freedom of the press. The suppression of obscene literature and pictures is an ever present necessity. ** Woodrow Wilson said that the Associated Press is "the raw material of opinion and, if my convictions have any validity, opinion ultimately governs the world."69 1916 The American Federation of Labor said organized labor was opposed to film censorship. Richard C. De Wolf reported that: In the United States we have no cases reported in which copyright has been denied on the ground of the libelous, seditious, or blasphemous character of the matter involved, but we have several cases in which immorality, in the narrower sense of the term, has been held a reason for refusing to protect the work which showed it.70 The New Statesman editorialized that censorship of movies or books are defenders not of morals but of conventions. "They are almost always as unintelligent as they are useless," the magazine said. The New York Vice Society threatened Theodore Dreiser's Genius with lawsuits to get it banned because Dreiser didn't punish his female delinquent characters in the book with anguish and remorse.71 Charming Pollock said: We are a decent-minded majority, and it is normal for us to demand clean entertainment as it is clean collars. While this is true, we do not need censors and, when it ceases to be true, censors will be merely futile fools trying to sweep back the sea.72 Charles V. Roman, an ophthalmologist, wrote, "Violence of language leads to violence of action. Angry men seldom fight if their tongues do not lead the fray."73

108 /World War I and Censorship Theodore A. Schroeder said, "The laws are so absurd that even the Bible has been judged obscene in Clay Centre, Kansas, in 1895."74 John S. Sumner, head of the New York Society for the Suppression of Vice, destroyed the printing plates ofHomo Sapiens because he believed it to be an obscene book. The Post Office suppressed The Worker s Voice (Rabochay Rech and Volne Listy), a Bohemian anarchist paper.75 1917 American Defense League, the American Protection League, The Sedition Slammers, and the Terrible Threateners searched for anti-war pamphleteers. Senator William E. Borah said on the Senate floor that: Without an unfettered press, without liberty of speech, all the outward forms and structures of free institutions are a sham, a pretense —the sheerest mockery. If the press is not free; if speech is not independent and untrammeled; if the mind is shackled or made impotent through fear, it makes no difference under what form of government you live you are a subject and not a citizen. Republics are not in and of themselves better than other forms of government except in so far as they carry with them and guarantee to the citizen that liberty of thought and action for which they were established.76 Edward E. Browne contended that freedom of the press is more important in wartime than in peacetime.77 Postmaster General Albert Burleson ruled that printed materials could not say: that this government got in the war wrong, that it is in it for the wrong purposes, or anything that would impugn the motives of the government for going into the war. They cannot say that this government is the tool of Wall Street, or the munitions makers. There can be no campaign against conscription and the draft law, nothing that will interfere with enlistments or raising of an army 78 George Creel, head of the U.S. Committee on Public Information, set up a system of voluntary censorship followed by the press during World War 1.79 Max Eastman told the jury in the second Masses trial that "the intention of our pubhcation is to pubhsh a free, vigorous, satirical, humorous, and somewhat reckless magazine from the socialist point of view." w The Post Office suspended mailing privileges for Masses, a socialist publication, and its pubhshers were accused of espionage. Editor Max Eastman then became editor

1900 Through 1924/109 of the Liberator. Altogether 80 radical publications lost mailing privileges and many radical journalists were jailed.81 Expression controls and censorship were established in the Espionage Act and the Trading with the Enemy Act. w The Espionage Act of 1917 and its amendments of 1918 were followed by similar and farther-reaching state laws. Prosecution of almost 2,000 persons followed with almost 900 convictions; postal control was exerted on about 100 newspapers. A section of the Espionage Act forbade using false statements to willfully interfere with the mihtary success of the United States, promoting the success of enemies, attempting to cause insubordination or refusal to serve in the military forces, or obstruction recruiting activities. The postmaster could bar letters, pamphlets, books, or newspapers containing such expressions. Within a month of its passage, 15 publications were denied mailing and 75 newspapers were restrained by postal officials.83 Several senators attacked the Espionage Act as a system for licensing the press, since a newspaper could check with the postmaster prior to publication to get approval of its contents. In 1917 senators said the act provided heavier censorship than a Russian muzzle and prohibited content allowed in Prussia. M The June issue of The International Socialist Review was suppressed after most copies had been mailed, so the Post Office refused to mail the July issue. Even before the Espionage Act was passed, the Post Office refused to handle its Liberty edition for the American Socialist, and a local pre-censorship postal board examined all subsequent issues.85 The Kansas State Board of Review replaced the 1913 Kansas Moving Picture Censorship Appeal Commission which the Supreme Court had ruled constitutional in 1915. The board disapproved movies which it considered cruel, obscene, indecent, immoral, or such as to debase or corrupt morals. M The Kissimmea Valley Gazette had to clip out an ad proposing a legal test of the Conscription Act before the Post Office would mail it. ** Large and powerful magazines published anti-recruiting materials freely and without interference from the Post Office or other government agencies which restrained small pubhcations. Federal officials in Chicago had a meeting in August to list anti-draft publications to prosecute, suppress, or keep out of the mails. w Mother Earth opposed the war and the draft so it was banned from the mails. The editor taunted the U.S. Postmaster with knowing about dozens of United States underground newspapers discussed in Secret Service reports. "

110 /World War I and Censorship The New York Post was excluded from the mails after a city election because it had supported a socialist candidate before the election. * The editor of the New York Stats-Zeitung said, "German-Americans were persecuted in World War I, afraid to be seen with a German-language newspaper." Harvey J. O'Higgins said: In the freest of countries, in the most peaceful of times, freedom of speech and freedom of the press were never more than the limited freedom to say what you pleased and print what you pleased and take the consequence.91 The Patent Office Gazette published in America could not be sent to neutral

countries. 92

Charming Pollack said: A censor is the politician's way of correcting Nature, which gave us five senses and only one of conscience. A motion picture censor is one of eighteen or twenty persons paid to tell an hundred million what they can see and enjoy. We are a decent-minded majority, and it is normal for us to demand clean entertainment as to demand clean collars. While this is true, we do not need censors, and when it ceases to be true, censors will be merely futile fools trying to sweep back the sea.93 The Post Office would not mail two issues of Four Lights, a publication produced by 60 women and edited in turn by teams. Lawyers had assured the women that these publications did comply with the Espionage Act. 94 Charles T. Spradling said: Control of the news and opinions is based on the economic interests of the newspaper owners. The press operates against the best interest of the public on three scores: it publishes only what will benefit the proprietor, it deceives the public as to its interests, and prevents expression of contrary opinion. Newspaper reading is more harmful than liquor or dope, for it keeps those who indulge in continuous intellectual bondage.95 Twelve states had bills to regulate obscene literature introduced in legislatures. Harry Weinberger said, "Governmental authorities, majorities, and the newspapers do not understand that all criticism should be expressed, for expression itself is a form of relief to those who have complaints to make." % WiUiam Allen White, Kansas newspaper editor, said, "There are three things that no one can do to the entire satisfaction of anyone else: make love, poke the fire and run

1900Through 1924/ 111 a newspaper."97 William R. Wood said, "In my opinion the real purpose of this measure is not so much for prevention of the publication of information that would be of comfort to our enemies or detrimental to our own Army as it is to shield the inefficiency of those who will be in high places in the conduct of the affairs of the nation during the present crisis."98 1918 Atlanta newspapers cooperated with the commanding officer of Camp Gordon who did not want it revealed that 3,000 Black troops were training there. " Zechariah Chafee said that the true meaning of freedom of speech is to foster society's interest in the discovery and spread of truth on subjects of general concern. "This is possible only through absolutely unlimited discussion." 10° Eugene V. Debs, in a speech to the Socialist party at its Ohio state convention, said: Socialists [have] come to realize it is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make democracy safe in the world. I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think.101 Eighty newspapers, mostly radical, were suppressed in the United States. Pubhcation of disloyal or un-American statements could bring a ten-year jail sentence under provisions in the Espionage and Sedition Acts.102 Edward J. Leech, editor of the Memphis Press, was sentenced to ten days for an editorial criticizing the courts and the judges in Memphis.103 Don Marquis, journalist, quipped that censors are necessary, increasingly necessary, if America is to avoid having a vital literature.104 The Nation magazine pointed out that Postmaster Albert Burleson was attempting to control public opinion through his action barring the September 19 issue from the mails for criticizing the government's labor policies. For four days, the Post Office held up the September 11 issue of The Nation because postal officials believed it contained unjustified criticism of the government and its agents. 105 Ninety-eight American newspapers dated August 22 and 23 could not be sent out of the country because they contained reports of the Aircraft Committee on Military Affairs. The Committee also prohibited magazines being exported if they contained

112/ World War I and Censorship information about debates on those days.106 The Post Office refused mailing of The Crisis because it reported an order to French officers and American Negro officers.107 The Post office suppressed Dr. B. Liber's book on sexual life as being obscene and too radical in explaining the economics of prostitution.I08 The 1798 Sedition Act was so disliked that the federal government waited 144 years before passing another one under the fears of World War I. It accompanied the 1917 Espionage Act as an amendment.109 Socialist Eugene V Debs was jailed for espionage in opposing the war. President Harding commuted his sentence in 1921. ll° President Woodrow Wilson said: I have always been among those who believed that the greatest freedom of speech was the greatest safety, because if a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out and the world knows that he is a fool. So it is by the exposure of folly that it is defeated; not by the seclusion of folly and in this free air of free speech men get that sort of communication with one another which constitutes the basis of all common achievement. Ul Wilson contended that there was no censorship in the American press regarding the Paris Peace Conference, but he had asked that the French censor French newspapers and dispatches sent to newspapers in other countries. m 1919 Brooks Adams, historian, said, "I had rather starve and rot and keep the privilege of speaking the truth as I see it, than of holding all the offices from the president down." l13 The American Civil Liberties Union found there had been 56 espionage cases which involved freedom of the press and distribution of literature. The American Federation of Labor and the National Trade Union League adopted resolutions supporting freedom of the press.1M The Board of Aldermen of one American city forbade circulation of German language newspapers. German-Americans were persecuted throughout World War I, and were afraid to

1900 Through 1924/ 113 be seen with a German language newspaper according to the New York Stats-Zeitung. If a German-language newspaper were delivered to an apartment building and residents saw it, there was trouble for the subscriber. U5 WiUiam Hand attacked Postmaster General Albert Burleson's use of power over the nation's press in the destruction of more than 100 publications. He deplored that a Democratic president had signed into law Congressional action closing the mails to any abusive writing about the form of the United States government even though President Woodrow Wilson had once said, "If there is one thing we love more than another in the United States, it is that every man should have the privilege, unmolested and uncriticized, to utter the real convictions of his mind." J. Edgar Hoover, compiled a case, accusing Russian interests of funding propaganda to stir up radical antagonisms, but Hoover never made public any evidence supporting his allegations. n 6 The March issue of The Metropolitan slipped through the mails even when the Post Office decided later on that it violated the Espionage Act. The Post Office regulations divided the country into a mailing zone plan to increase the cost of secondclass mailing. U7 The New York Evening Post believed that six lines of news from the front with names of regiments would do more good to stir up enthusiasm than reams of synthetic write-ups from a Washington bureau. The New York Tribune said that censoring the addresses from casualty lists was one of the most drastic bits of censoring promulgated by the War Department, which acquiesced to French apprehensions of the Germans being able to check the effectiveness of gas attacks. A. Mitchell Palmer, attorney general, master-minded a series of raids which resulted in the arrests of 3,000 or more aliens suspected of plotting to overthrow the government; of those arrested 556 were deported. Palmer handled the matter so badly and in violation of law, that he was dumped as a possible candidate by the Democrats in 1920. " 8 The Post Office and the Navy would not mail the May New York Times Current History or its Mid-week Pictorial of May 23 to Manila, China, Japan, or India. 119 Seventy radical publications lost mailing privileges. A black weekly in Virginia did so because it questioned why mistreated blacks would fight for the United States. RCA was formed to seek the radio monopoly the navy couldn't get. It was a combination of Westinghouse, General Electric, American Telephone and Telegraph, and American Marconi (a British Company). They divided the broadcast world among

114/ World War I and Censorship themselves. Margaret Sanger's Birth Control Review was banned because of a review of Marie Stopes's Married Love. The journal was mailable in Canada but not in the United States. l2° The editors of the Seattle Union Record were arrested for espionage as was the editor of the Business Chronicle after there had been some Armistice Day killings. m The Sedition Law specified criminal punishments for defamatory criticism of government officials. The law was repealed in 1921, 35 states passed similar sedition statutes and criminal syndicalism law. Cities had ordinances making actions or speeches calculated to interfere with the war criminal. l22 The Trading with the Enemy Act authorized censorship of all messages abroad and required any newspaper or magazine containing articles in foreign languages to file a sworn translation with the postmaster.123 Several issues of The Truth Seeker were denied mailing privileges because they criticized the YMCA and the Red Cross. 124 A senile old Wisconsin man was sent to jail for a year wherein he died because he published an incoherent editorial in German with no translation as required by the Trading with the Enemy Act, which drove many small foreign language papers out of business. A second German language editor in Wisconsin was indicted for saying he would not comment on the war in his paper.125 1920 E. H Bierstadt said, "To create understanding is to create sympathy, and to create sympathy is to create unity. To this mission and to this motto the foreign language press of America is pledged and dedicated." 126 President Calvin Coolidge said that if you don't say anything, you won't be called on to repeat it.127 Samuel Gompers, president of the American Federation of Labor said that extension of mailing restraints beyond the war would prolong censorship over the entire American press and would destroyfreespeech and assembly. Congress defeated the proposed extension.128 Robert LaFollette said, "It is doubtful if the American people can ever emancipate themselves from the merciless exploitation of the colossal monopoly which control markets and prices, until they shall establish a free and independent press." 129 The Mississippi state legislature passed a statute making it illegal to print appeals,

1900 Through 1924/115 arguments, or suggestions favoring social equality between the white and black races.130 "Again the Literary Censor" in The Nation reported that, while pitiably sincere, the vice societies are stupid and unable to distinguish between good literature and nasty books.131 The New York Vice Society sought to suppress James B. Cabell's Jurgen and Gautier's Mademoiselle de Maupin. But a New York court ordered the vice society to pay a book clerk damages for prosecuting him maliciously for selling the Gautier book.132 Attorney General A. Mitchell Palmer believed that a line could be drawn easily across which man would not be permitted to go in the exercise of the right of free speech. He launched a vigorous campaign against radicals by arresting 4,000 persons and confiscating books, papers, and posters, without either arrest or search warrants. He deported hundreds of aliens and Congress considered an assortment of proposed sedition laws. But Palmer's raids found virtually no illegal radical activities. 133 A St. Louis Post-Dispatch editorial, in discussing deportations of aliens, said, "Free government cannot be saved by the destruction of the pillars upon which it stands—free speech, free assemblage, and freedom from official oppression in any form." 134 Twenty-eight states had repudiated earlier state movie censorship agencies. Thorstein Verblen's Imperial Germany was suppressed.135 WEAF broadcast the first radio commercial at the beginning of a sponsored broadcast. The commercial was an effort to sell and rent apartments. 136 Henry L. West said, "We want, and always will have a free press, but it must be a press that deserves itsfreedomthrough respecting and upholding the principles that made us a free nation." 137 Westinghouse put KDKA on the air with regularly-scheduled broadcasts in East Pittsburgh in an effort to sell radio sets. There were only three radio stations broadcasting regularly in the United States in 1920.138 President Woodrow Wilson's criticism of Italy caused the suppression of articles from the Wall Street Journal 139 1921 The fourth volume of the Cambridge History of American Literature was withdrawn by the Putnam Company so articles could be substituted for one about Mrs.

116 /World War I and Censorship Mary Baker Eddy and Science and Health and for one on the Book of Mormon, because of pressure from Christian Scientists and Mormons. 14° William E. Chancellor in his book, Warren Gamaliel Harding, President of the United States: A Review of Facts Collectedfrom Anthropological, Historical, and Political Researches, contended that President Harding was part Negro. The government promptly suppressed it. U1 Burgess Johnson said, "The greatest danger that lies in the recognition of the rights of censorship is that thoughtless people will grow to believe that any such real right exists." I42 The Mississippi legislature established a misdemeanor to print or publish appeals, arguments, or suggestions favoring equality between the white and black races.143 Legislative bodies in 32 states were considering movie censorship statutes. The Motion Pictures Producers and Distributors of America was organized primarily to clean up movies. The New York Society for the Suppression of Vice seized 772 copies of the books Casanova s Homecoming, Women in Love, and A Young Girl s Diary from Thomas Seltzer's bookshop but he was acquitted of obscenity charges. In 1924 he was indicted for selling two of the books but managed to escape prosecution by withdrawing the books from sale.144 William Allen White was arrested for supporting railway workers during a strike because he placed placards in his newspaper office windows. These were considered a type of picketing. White wouldn't remove the placards and wrote a Pulitzer prizewinning editorial in his paper about the need for freedom of expression during periods of national concern. Zion City, 111., banned jazz music, performances, smoking, and other sinful practices. In Chicago, no trumpet or saxophone playing was permitted after dark.145 1922 The pubhshers of Jurgen, a novel by Branch Cabell, were acquitted of obscenity charges. This case marked a turning point in the obscenity convictions which became more difficult to obtain.146 The Motion Picture Producers and Distributors was organized to self-censor movies.l47 Edward A. Ross of the American Sociological Association said, "For organized society to allow the weapon of a free press to be wrenched from the hands of the laboring class in their struggle against oppression, constitutes connivance in one of the

1900 Through 1924/117 greatest inequities that could be committed." 148 Editor William Allen White of Kansas said: So, dear friend, put fear out of your heart, this nation will survive, this state will prosper, the orderly business of life will go forward if only men can speak in whatever way given them to utter what their hearts hold—by voice, by posted card, by letter or by press. Reason never has failed man. Only force and depression have made the wrecks in the world.,49 1923 The American Newspaper Publishers Association was founded in 1887 and worked to enhancefreedomof the press. In 1923 it set up a committee on federal laws to exercise utmost efforts to maintain freedom of the press whenever it was threatened.150 Horace B. Liverwright said, "A censorship over literature and the arts is stupid, ignorant, and imprudent, and is against the fundamental social principles of all intelligent Americans." l51 A law was enacted in Minnesota that stated that any person who willfully furnished any paper in Minnesota with false information was guilty of a misdemeanor. The National Association of Broadcasters was formed. It developed a code of broadcasting rules for radio and ultimately for television. 152 Lucy Salmon, in her The Newspaper and Authority, said that one of the old taxes on knowledge defined the press thus: Every person possessing a printing press or types for printing, and every typefounder, was ordered to give notice to the clerk of the peace. Every person selling type was ordered to give an account of all persons to whom they were sold. Every person who printed anything also had to keep a copy of the matter printed, and write on it the names and abode of the person who employed him to print it. The conflict between the newspaper and authority will be settled only when the press asserts its rights to truefreedomand claims it from authority. The true freedom of the press lies, and lies only, within the keeping of the press itself. 153 1924 The Americanism Protective League was formed to oppose a proposal for a New York Clean Books Bill. 154 The Canons of Journalism, a statement of journalistic ethics and functions, was devised by the American Society of Newspaper Editors.

118/ World War I and Censorship Thomas Dixon said: As an author, I am bitterly and uncompromisingly opposed to prepublication or previewing censorship, either of pictures or books...not only is censorship undemocratic and in violation of the fundamental principles upon which the Republic rests, but the establishment of a censorship will never accomplish the purpose for which it is established.155 Emanuel Haldeman-Julius said that censorship robs movies of virtually every vestige of freedom save that of the indiscriminate throwing of pies.156 William Randolph Hearst said, "We hold the greatest right in the world is the right to be wrong, that in the exercise thereof people have an invisible right to express their unbridled thoughts on all topics and personalities being liable only for the abuse of that right."157 Members of the International Workers of the World and the Worker's Party were prohibited from circulating pamphlets and books by an injunction based on a California criminal syndicalism law. By a vote of 85 to 11, the Protestant Episcopal Church of the United States deposed Bishop William Montgomery for teaching unapproved doctrines in his book Communism and Christianism. WiUiam Allen White, in The Editor and His People, said, "You can have no wise laws norfreeenforcement of wise laws unless there is free expression of the wisdom of the people—and, alas, their folly with it. But if there is freedom, folly will die of its own poison, and the wisdom will survive." 158 An electrical system of recording and playing back sound was developed. Vladmir Zworykin demonstrated a television set.159

Chapter 10

ACHIEVING NEW CONCEPTS OF FREE EXPRESSION 1925 THROUGH 1949 General Events and Perspectives 1929—Senator William E. Borah said, "When you drive menfromthe public arena, where debate isfree,you send them to the cellar, where revolutions are born." l 1942—Writer Herbert Sebastian Agar said that the truth that makes menfreeis for the most part the truth which men prefer not to hear.2 1943—The American Civil Liberties Union discovered and reported that American democracy was maintaining the essentials of liberty very well in the depths of World War II, with the exception of impounding the Japanese in internment camps.3 1945—Senator Helen Gahagen Douglas told the Senate, "It is not easy to befreemen, for to be free you must affordfreedomto your neighbor, regardless of race, color, creed, or national origin, and that sometime, for some, is difficult." 4 Freedom of Expression 1925 When Boston's Watch and Ward Society won a conviction of James DeLacey for selling Lawrence's Lady Chatterley s Lover, opponents of censorship managed to get the state law liberalized so the Society and censorship became of little importance.5 The Central Conference of America Rabbis condemned interference, whether by private citizens or by officials, with the exercise offreedomof speech whether written or oral.

120 / Achieving New Concepts of Free Expression Frank R. Kent said that pulp magazines like Hot Dog, Red Pepper and Whiz Bang, had made American newsstands more lurid than those of France. A Clean Books League failed to get the New York Legislature to pass a tougher obscenity law.6 The Minnesota legislature passed a law that permitted a judge to stop publication of a newspaper that was named in an information filed in a court of equity as being malicious, scandalous, and defamatory. The Radio Corporation of America denied it was trying to monopolize broadcasting. It set up the National Broadcasting Corporation, disassociated from the American Telephone and Telegraph Company, and made RCA facilities available to broadcasters other than NBC stations. By late 1925 there were 578 radio stations in regular operation. The Board of Movie Censorship maintained by the movie industry forced the makers of a silent movie of The Scarlet Letter to portray Hester Prynne as being married.7 Actually, Hester was married to an old man who sent her ahead but was kidnapped by Indians and held prisoner for more than two years before he convinced them to take him to the settlement. He stalked Hester unmercifully. 1926 Arnold Bennett said, Give a nice child, the Newgate Calendar and he will remain a nice child. Give a nasty child the Pilgrim s Progress, and he will remain nasty. A child will only take from a book what he wants. The rest will slide off his intelligence like water off a duck's back. I feel sure I should do more harm by forbidding any book than by permitting all books. 8 Silas Bent said that no newspaper reader would become an active champion of press freedom until "newspapers mend their ways and shovel less smut, and print more news." 9 Columnist Heywood Broun said in the New York Times, "Free speech is about as good a cause as the world has ever known. But like the poor it's always with us and gets shoved aside in favor of things more vital." 10 Edgar Watson Howe, in Preaching from the Audience, said, "I express many absurd opinions. But I am not the first man to do it; America's freedom consists largely in talking nonsense." u The Christian Science Monitor editorialized: The persistent glorification of criminals in the press, the publication of

1925 Through 1949 / 121 their portraits, the use of laudatory or at least striking nicknames, and the growing exploits of criminals all over the Sunday papers, stimulate, encourage, and increase crimes.12 George R. Dale, editor of the Post-Democrat in Muncie, Ind., fought against the Ku Klux Klan and pohtical corruption and for free speech and free press. He was frequentiy hauled into court, assaulted, shot at, and deprived of advertising by pressures from his opponents. A judge refused to allow copies of the newspaper on city streets, but the Indiana legislature impeached the judge. I3 Writer Langston Hughes said, "An artist must be free to choose what he does, but he must also never be afraid to do what he might choose." 14 George Jean Nathan said, "Not a voice has been raised against any of them (67 episodes of legitimate theatre plays depicting rape, seduction, incest and degeneracy). And yet the oralists go down into a remote corner of the town, where men and women are as tough as beefsteaks, and demand that the lid be clapped on the innocent spectacle of a fat girl shaking her middle." 15 1927 In order to escape prosecution, Boston booksellers stopped selling certain books including Patrick's Rebel Birds, Newman's The Hardboiled Virgin, Pascal's Marriage Bed, and Smith's The Beadle. Boston had banned nine contemporary novels including Plastic Age by Mark, As It Was by Thomas, Elmer Gantry by Lewis, and An American Tragedy by Dreiser.l6 To avoid confusion, the Customs Bureau and the Post Office made a list of 700 books that could not be imported or mailed. Donald Davidson said, "Censorship gets nowhere, because nobody can decide with any sort of accuracy what really ought to be censored. I know of no person I would trust as a literary censor." 17 The Federal Radio Gxnmission directed the Secretary of Commerce in broadcast matters. The secretary of commerce issued three year hcenses and referred license applications and renewals to the commission. He sent disputes to the commission, established qualifications, provided call letters, and operation techniques. 18 Author Sidney Howard said, "The censorship which now threatens the American theater now outstrips in severity any that the English speaking stage has known since the days of Cromwell." ,9 Jewish groups pressured Los Angeles City Schools to discontinue using the Merchant of Venice in classes.

122 / Achieving New Concepts of Free Expression The mayor of Chicago ordered a survey of the history books in the Chicago pubhc library to find books tainted with British propaganda so they could be locked up. 20 Joseph W Krutch contended the conclusive argument against censorship, as a critic writing in The Nation, is the character of the censor himself, since there never was one who was not utterly ridiculous.21 A Mississippi representative proposed the formation of a National Board of Magazine Censorship. George Jean Nathan said, "The men who devote themselves to censorship are simply men who have not, with the aid of experience, wisdom, and honor, outgrown the childish desire for indiscriminate havoc. They are thus what may be designated as emotional morons."22 There were 733 radio stations by the time the Federal Radio Commission Act was passed. M Broadcaster Elmer L. Rice said, "The distinction between voluntary censorships is purely illusory. Censorship is censorship and in accepting it in principle or in fact the public surrenders itself into the hands of the Comstockians.24 Congress passed the Radio Act establishing the Federal Radio Commission. It made it necessary for license holders to broadcast in the pubhc interest, convenience, or necessity. The airwaves became a public resource for broadcasters to use but not own. The five member board was prohibited from interfering with free speech and provided equal broadcast opportunities for political candidates. Licenses could be revoked for indecency, profanity, or failure to follow license provisions. It allowed the government to take over stations in emergency situations. Commercials had to be identified. It banned any form of censorship or prior restraint. The act was obsolete since radio technology and function both were far ahead of its provision. M Upton Sinclair, who considered himself the prize prude of the radical movement, tormented Boston pohce with a fig leaf sandwich board which he wore to sell copies of his novel Oil on the streets of Boston where it had been banned. Fig leaves had been printed on some of the pages as part of the scam. He even sold a copy of the Bible wrapped in an Oil book jacket to a pohceman. Sinclair was trying to be arrested and jailed for the book, but a judge only fined a book store clerk $ 100 for selling copies. Sinclair said that "we authors are using America as our sales territory and Boston as our advertising department."26 1928 Author John Adcock said, "You cannot suppress an evil by driving it underground; it usually flourishes longer there than it would have done if you had left it to look paltry and wilt in the common cleanness of the sunlight."27

1925 Through 1949 / 123 Waldo Franklin, author, said, "A free force that restrains in rhythm with organic growth is a control; a force that restrains against that rhythm is a censor. Censorship is the one way of ordering a world that does create its own organic order." M President Herbert Hoover said thatfreespeech does not live many hours after free industry and free commerce die.29 Desmond MacCarthy said, "History shows that only those communities have flourished in which men were allowed to pool their experience and comment freely on life, and that the suppression of freedom is a graver risk to civilization than the circulation of any particular book is to morality." M William Paley purchased the Columbia Broadcasting System. The political radio commercial was developed. When an amendment was proposed to allow customs officials to exclude foreign literature, opponents of the plan fought it and the customs law was liberalized.31 Novelist Theodore Dreiser said: Today we are faced with one of the most fanatical and dangerous forms of censorship that ever existed, because the effect is to reduce all human intelligence to one level—and that level about that of a low-grade (not even a high-grade) moron. The Federal Radio Commission set forth narrowly-defined standards for what it felt was desirable programming by broadcast licenses. In its third annual report the FRC outlined an historical basis for its broadcast fairness doctrine.32 Author Robert Herrick said: Better to allowfreepornography than to leave to any censor or board of censors the choice of what we can read or think! Less harm to public morals would be done with complete license than from the sort of censoring we sufferfromat present—haphazard, ignorant, vacillating.33 John A. Hobson said there had been a change in thought and speech, and an abandonment of the sentimental prudery which sought thrills of secret pleasure from revelations of the shocking, in favor of a more open and honest attitude toward the facts of life. Education and public opinion have a higher prophylatic value than legal force. M President Herbal Hoover, at an address at the annual luncheon of the Associated Press in New York City, said that absolute freedom of the press to discuss public questions is a foundation stone of American hberty.35 Joseph Lewis, an author, said, "The burning of an author's books, imprisonment

124 / Achieving New Concepts of Free Expression for opinion's sake, has always been the tribute that an ignorant age pays to the genius of its time."36 Boston banned 68 books, an act which solidified its national reputation for repression.37 George Jean Nathan said: Why it is that censorship designed by its own admission to safeguard the young, the susceptible, and the ignorant, four times out of five desports itself not in that quarter at all but exercises itself sedulously against institutions and works whose appeal is directly and almost entirely to unsusceptible and intelligent adults.38 John Sumner and his New York Society for Suppression of Vice failed to get a conviction of Radclyffe Hall's The Well of Loneliness. A three-judge appeals court ruled that its theme, based on lesbianism, was not sufficient to make it obscene.39 1930 F. P. Dunne, an American humorist, said, "The job of the newspaper is to comfort the afflicted and afflict the comfortable." *° Emmanuel Haldeman-Julius, publisher of the Little Blue Books, said: The real animas of censorship lies in a dislike for art that, whether imaginatively or realistically, runs counter to notions of respectability, which the censors personally regard as sacrosanct and which they pretend have the just force of great social necessities. Censorship is foolish and the censors personally illustrate its foolishness to the last degree.4l Columnist Walter Lippman said, "The opposition is indispensable. A good statesman, like any other sensible human being, always learns more from his opponents than from his fervent supporters."42 The National League of Decency was set up by the Roman Catholic Church to monitor movies. The Motion Picture Producers and Directors Association set up a Production Code Administration to censor movies.43 Everett Dean Martin said: Freedom of speech is, I believe, the hberty on which all other liberties depend No other hberty, even the little we now enjoy, had been so hard to gain. No exercise of freedom is so essential to the advance of civilization, and none is at the same time more dangerous. No other recognized liberty is so repeatedly subject to attack, and none may so easily be lost. The exercise of this right may incite men to riot, and the attempt to suppress free speech has been the common cause of

1925 Through 1949 / 125 persecution Enemies offreedomand cultural advance always strike first at freedom of speech because in doing so they not only hope to shoot hberty through the heart, but they can easily find plausibilities to justify such an assault on freedom. With freedom of speech allowed, the second-rate man has his say along with the rest; without it, he alone may speak. u The Motion Picture Production Code was formalized. The Hays Code of Movie Censorship was written by a trade paper publisher and a Catholic priest.45 The Post Office removed second class mail privileges from Revolutionary Age, a weekly published by a Communist faction. * The superiority of radio bulletin news became established, and the news wire service began selling wire news material to radio news departments. The Wilson (Library) Bulletin said, "The librarian cannot hope to keep the facts of lifefroma sophisticated younger generation bred on the sensational cinema and the scandalous newspaper. The day is past when a book is considered bad because of the author's lack of reticence in the treatment of universal experiences and problems."47 1931 Lawrence Rogin said, "Political censorship of any sort in a democracy is an anomaly. To vest the power of such censorship in an official whose decisions for all practical purposes is final, is to introduce autocracy in an extreme form." ** Frank Swancara said that archaic state blasphemy laws were being used to suppress radical literature which only incidentally alluded to atheism.49 1932 Educator Abraham Flexner said, "An attack from the public or the alumni or the trustees on freedom of thought and speech should be resented as a threat to the very life of an institution of learning." x The National Council on Freedom from Censorship was founded. Holbrook Jackson said, "It is to the glory of books that ignorance and fanaticism are their enemies and that their history is disfigured with calumnities, persecutions, and neglect." 5l RCA bought its independence from its parent companies through a consent decree, thus solving an anti-trust suit. 1933 The American Newspaper Guild was founded in Washington by delegates from 30 cities to preserve the vocational interest of its members, to improve the conditions

126 / Achieving New Concepts of Free Expression under which they worked by establishing collective bargaining, and to raise the standards of journalism.52 Edwin Armstrong patented the FM radio broadcasting device.53 Columnist Walter Lippman said that the right of free speech belongs to those who are willing to preserve it.54 Comic books were developed by imaginative publishers after kids' nickels. These books met with severe censorship because of depiction of violence and other content considered harmful to children by many persons.55 1934 Columbia University banned CaldwelPs books Tobacco Road and Gods Little Acre.56 The Federal Communications Act of 1934 established the seven member Federal Communications Commission to control broadcasting. It centralized government regulation of telephone, telegraph, and broadcast activities. An effort was made to restrict commerciahsm but that failed. The act proscribed the Federal Communications Commission from acting as a censor in the traditional sense of prior restraint; however, the FCC could review a station's programming to see if it had operated in the public interest.57 The Federal Radio Commission became the Federal Communications Commission.58 The Columbia Broadcast System canceled an Alexander Wolcott broadcast; some people complained to the Federal Communications Commission about his remarks against Hitler.59 ** Robert M. Hutchens, president of the University of Chicago, said, "Freedom of inquiry, freedom of discussion, and freedom of teaching—without these a university cannot exist."61 Albert D. Lasker said: No more vicious calumny has ever been put forth than the suspicion that the press in any major or important way can be influenced editorially by the advertising patrons. Afreepress is made possible by its advertisers. End free advertising and you will largely end a free press.62 RCA budgeted $1,000,000 in an effort for a television program demonstration.

1925 Through 1949 / 127 Indiana Senator Arthur Robinson told the Senate that the national emergency faced by the United States should not be used as an excuse to restrict freedom of speech or of the press. 63 1935 The American Newspaper Publishers Association demanded a statement in the National Recovery Administration code for newspapers assuring freedom of the press. Government officials believed such a statement superfluous in the code which was voluntary. But the government had power to license any agency which did not agree to follow the code plan. N.RA. was declared unconstitutional within fifteen months.64 Heywood Broun said that "if labor wants to get a press which is fair to labor, it will have to organize its own newspaper. Our present press is free to do as it pleases, and it pleases to be always on the side which carries the heaviest butter."65 N. B. Buchanan said, "We see and hear things in everyday life, which are far worse than any which get into print. We cannot very well censor life, so why bother unduly about the books. Censorship is so often a form of mental coddling which lowers one's powers of resistance against evil, that it is difficult to appreciate the mentality of anyone who will argue in its favor." w Louis G. Caldwell said, "The scope of freedom of speech by radio should be no whit less than the scope of freedom of the press, not only for the sake of the broadcaster and his listening public but also for the sake of the publisher and his reading pubhc. Theirs is a common cause, liberty of expression, and a defeat suffered by either will eventually expose the other to a flank attack."67 T. I. M. Clulow said, "The librarian is obligated as a matter of professional ethics to providefreeaccess to literature representing all shades of opinion, propagandist or not." * The House Un-American Activities Committee under the chairmanship of Martin Dies began its efforts to expose communists in the CIO labor union and in the New Deal bureaucracy. 69 W S. Taylor advocated censureship instead of censorship since it would not interfere with the completefreedomof pubhcation and yet the government would have opportunity to present its opinions.70 1936 Frank Aydelotte, president of Swarthmore College, said: No educational institution can live up to its name without free discussion. It is dangerous, but education itself is dangerous, and only by such discussion can we "keep up our communication with the future."71

128 / Achieving New Concepts of Free Expression Paul Bellamy told an attorney general's conference, "I regard the publication of crime news as one of the primary obligations of a newspaper arising out of its mission to improve society." n James Conant, president of Harvard University in his address at the University's Tercenary, said: For the development of a national culture based on the study of the past, one condition is essential. This is absolute freedom of discussion, absolutely unmolested inquiry. We must have a spirit of tolerance which allows the expression of all opinions, however heretical they may appear. 73 Thomas S. Gater, president of the University of Pennsylvania, said, "Such advance as we have made since the Middle Ages had been primarily due to those sacredfreedom—ofthinking, of teaching, of inquiry, and of opinion—freedoms which today are endangered in so many places in the world."74 William T. Laprade said: The monopolistic character of the enterprise of gathering and dispensing news and current comment and its profound influence of the material thus dispensed in shaping mass emotions certainly raises the question whether a publisher chiefly interested in earning a profit is the most suitable trustee of this undertaking?75 The Montana State Board of Higher Education banned Vardis Fisher's Passions Spin the Plot from university libraries. Stanley Walker, an editor, in "The Newspaper and Crime for The Attorney Generals Conference on Crime Proceedings," said, "I am in favor of the merciless, complete printing of all the news of crime, even of crime photographs. In no other way can the pubhc be shaken out of its natural lethargy. I believe it is better for the public to be frilly informed, whether the facts are pleasant or shocking, than to remain ignorant."76 1937 M. D. Kennedy contended that under freedom of the press there is a great deal of high-handed action on the part of editors and managers which is the reverse of true freedom.77 Bernard DeVoto said, "[Censorship] fails to distinguish between fiction and reality. It mistakes a verbalism for a psychological and ethical principle. And it is perpetually out of touch with society as it is, and so finds itself stopped by social energies which it perpetually misunderstands. The only solution to the problem of censorship is to do away with it entirely."78

1925 Through 1949 / 129 The Radio Code of Good Practices was first adopted in 1937 and has been revised frequently thereafter. 1938 Congress created the House Un-American Activities Committee, which led to black-listing various authors. Congress authorized greater power to the Federal Trade Commission to regulate and punish unfair or deceptive advertising.79 John Cowles, publisher, said that there's nothing wrong with American newspapers today except us publishers. w William B. Munro said, "It is the newspaper press that has made modern democracy possible."81 Marjorie Kinman Rawlings, an author, said, "You kin tame a bear. You kin tame a wildcat and you kin tame anything, son, excusing the human tongue." w Franklin D. Roosevelt, in an address to the National Education Association, said, "If thefiresof freedom and civil liberties burn low in other lands, they must be made brighter in our own If in other lands the press and books and literature of all kinds are censored, we must redouble our efforts here to keep them free. If in other lands the eternal truths of the past are threatened by intolerance we must provide a safe place fa* their perpetuation." On another occasion, he said, "Books may be burned and cities sacked, but truth, like the yearning for freedom, lives in the hearts of humble men and women." K By using the electric eye, the St. Louis Post-Dispatch and the Radio Corporation of America developed the first facsimile newspaper broadcast by radio. M William Allen White, an editor, said, "Newspapers cannot be free, absolutely free in the highest and best sense, until the whole social and economic structure of American life is open to the free interplay of democratic processes."85 1939 Connecticut, Georgia, and Massachusettsfinallyratified the Bill of Rights. Books condemned and soon to be censoredfromschools and libraries: A Farewell to Arms, Grapes of Wrath, Tobacco Road, Gods Little Acre, Jack and the Beanstalk, Huckleberry Finn, Tom Sawyer, Leaves of Grass, Paradise Lost, The Republic (Plato), Silas Marner, Around the World in Eighty Days, The Scarlet Letter, Macbeth, Crime and Punishment, Moby Dick, Zoo Story, To Kill a Mockingbird, Diary of a Young Girl, The Cool World, The Rabbits' Wedding, A Dictionary of American Slang, Mickey Mouse, Three Weeks, Little Black Sambo, Five Chinese Brothers, Doctor Dolittle, Ulysses (Joyce), Catch-22, The Catcher in the Rye, The Naked Ape, The Encyclopedia of Witchcraft, Demonology and Their Craft, Manchild

130 / Achieving New Concepts of Free Expression in the Promised Land, Down These Mean Streets, Jaws, North Dallas Forty, Go Ask Alice, Rivers of Blood—Tears of Darkness, To Walk the Line, The Water Is Wide, Beastly Boys and Ghastly Girls, Andersonville, Soul on Ice, The Fixer and Sanctuary. Harold L. Ickes contended the real danger to freedom of the press came from sinister forces in the press itself rather than from the government. He accused editors of using freedom of the press as a smokescreen to suppress. u George Lang said, "A free press is at one with the Christian religion in offering the dignity and worth of the plain man It is also obvious that a free press is at one with those who affirm the service of reason to promote human welfare." ** For 19 years, the anarchist publication Man was persecuted in San Francisco. w J. W Smith said: If librarians as a group are believers in the democratic dogma and wish to be consistent in their actions and carry out their convictions, they can hardly avoid permitting entry to their libraries of all forms of propaganda. Democracy presupposes toleration and can only hope to function in a milieu in which opinions circulate freely and in which the individual is exposed to all sides of public questions and given an opportunity to make up his own mind. " The Studio was banned from the mails for its nudes, but protests caused the Post Office to reverse the ban. ** Commercial television began with a demonstration at the 1939 New York World's Fair. Denys Thompson said, "The answer to the challenge to protect young people from the sinister propaganda rife in the world today is not censorship but education of children to discriminate in their reading."91 William Allen White, editor of the Emporia, Kansas, Gazette, said: The most serious danger that menaces the freedom of the American press is the obvious anxiety of rich publishers about freedom of the press. They make so much noise about the threat to freedom of the press that they have persuaded many people that freedom of the press is merely a private snap for editors who wish to exploit the public by selling poisoned news. Whenever I read a rabid reactionary newspaper whooping it up forfreedomof the press I'm scared stiff. For every boost that kind of paper makes for freedom is a knock against it. That kind of press in Czarist Russia, in pre-war Germany and Italy or the Kingdom, must have made the public sentiment that stood by and let the freedom

1925 Through 1949 / 131 of the press on continental Europe go to pot. A kept press is the first sign that human liberty is being crushed. n The Yale Law Journal said, "Censorship [of motion pictures] by previous restraint is an impediment to full development of the cinema, and that the maturity of the industry now renders this form of control unnecessary."93 1940 The American Library Association set up its Committee on Intellectual Freedom to promote First Amendment protections.94 Robert C. Bassett said, "The fundamental purpose of the First and Fourteenth Amendments with the respect to freedom of the press is not the guarantee to publishers the right to print, but to guarantee the American people to read what is printed, to learn the facts concerning public affairs, to weigh conflicting opinions, and to form their own judgments, unhampered by the dictates of any one branch of government."95 Albert Einstein, scientist, said, "Freedom of communication is indispensable for the development and extension of scientific knowledge." % Eleanor Roosevelt said: It is very difficult to have a free, fair and honest press anywhere in the world In thefirstplace, as a rule, newspapers are largely supported by advertising, and that immediately gives the advertiser a certain hold over the medium which they use.97 Franklin D. Roosevelt, in a letter to W. N. Hardy, said, "Freedom of conscience, of education, of speech, of assembly are among the very fundamentals of democracy and all of them would be nullified should freedom of the press ever be successfully challenged." * Jane Russell's breasts "hung over the movie, The Outlaw, like a thunderstorm spread out over a landscape." The original uncensored 117-minute version cannot be found." The Smith Act was primarily a sedition law. It made it a crime to advocate the violent overthrow of the government or to organize or belong knowingly to a group advocating its overthrow. This meant it was illegal to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter, advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence. 10° The Voorhis Anti-Propaganda Act was passed. Congress passed the Smith Act because of the spread of Hitlerism and Communism and the fear of disloyal groups or

132 / Achieving New Concepts of Free Expression individuals in the United States. Mae West said she believed in censorship. "After all, I made a fortune out of it."101 1941 Zechariah Chafee, Jr., Harvard law professor, produced his Free Speech in the United States, a classic work. He wrote that there can be no doubt that freedom of the press encompassed an unrestricted right of free discussion of public affairs. 102 Zechariah Chafee reported that 877 persons were convicted and more than 100 publications bannedfromthe mails under provisions of title 1 and 12 of the Espionage Act, but other studies suggest that at least 2,000 persons were indicted.103 The Post Office kept Father Charles Coughlin's Social Justice, and the Trotskyite Militant from the mails. 104 The Georgia Board of Education banned A Man Named Grant by Helen Todd.105 Jonathan Daniels said, "Both the Army and the people would be safer from the consequences of military mistakes if there were a clearer understanding all down the line in Washington about just what constitutes legitimate information and a more efficient system of getting it through the press to the people." 106 With organization of the country for war, newspaper men recalled that the Espionage Acts of 1917 were still on the statute books. The use of these acts kept publications from the mails and suppressed free speech more sharply than in World War I. ,07 Walter D. Fuller, president of the National Association of Manufacturers, urged preservation of the press to guard American democracy.108 Lillian Hellman, playwright, said that for every man who lives without freedom, the rest of us must face the guilt.109 Peadar O'Donnell, in "The Dumb Multitudinous Masses" in Bell, said that censorship is the screen the dying order sets up to hide its weakness and shame. u o Byron Price headed up the World War II Office of censorship and Elmer Davis directed the Office of War Information. Little objection was raised to their efforts. m Max Radin said, "It is respectfully suggested to Superior Courts everywhere that contumely, no matter how offensive, which falls short of an organized conspiracy to impede justice, may be treated not as contempt of court but with contempt by the court." " 2

1925 Through 1949 / 133 Franklin D. Roosevelt said, "We all know that books burn; yet we have the greater knowledge that books cannot be killed by fire." In a letter to the American Society of Newspaper Editors, he pointed out that free speech and a free press are still in the possession of the people of the United States. He also said, in a State of the Union Message to Congress, that in the future days, "which we seek to make secure, we look forward to a world founded on four essential human freedoms. The first is freedom of speech and expression—everywhere in the world." l13 E. R. Stevenson, a newspaper editor, exhorted people to fight for freedom of the press against the government if need be and to fight for it against any newspaper, if need be. »4 W G. Vorpe, a newspaper editor, defined freedom of the press as the right of any editor, writer, or publisher of any newspaper, magazine, or pamphlet to express an opinion whether it be endorsement, denunciation, praise, criticism, or suggestion, so long as these expressions are not treasonable. U5 1942 Boston banned an issue of Life because it reprinted six nude pictures on display in a Dallas Art Museum.116 Records indicate that as many as 2,000 persons were arrested under provisions of the 1917 Espionage Act and more than a hundred publications kept out of the mails by the law. Publisher William Randolph Hearst said, "Freedom of speech is not only the boon but the basis of democracy—not only the gift but the guarantee of liberty and security—not only the privilege but the protection of a free people." l17 When the Japanese citizens of the West Coast were interned by the United States, their Japanese language newspapers were discontinued. RCA had to sell its Blue network to comply with antitrust laws. It became ABC. The Medical Library Association Bulletin said, "Today, suppression of books in general and of medical books in particular is still a lawful procedure in many countries, democratic and totalitarian." 118 Franklin D. Roosevelt established a Coordinator of Information to find information, not give it. He said: I have always been firmly persuaded that our newspapers cannot be edited in the interests of the general public from the counting room. Freedom of the news instead offreedomof the press should be the chief concern. All Americans abhor censorship, just as they abhor war, but the experience of this and all other nations has demonstrated that some

134 / Achieving New Concepts of Free Expression degree of censorship is essential in wartime and we are at war. l19 George Seldes, press critic, said that the nation's "press is corrupt and that it has usually perverted the war news as well as labor news of social and economic importance." 120 Frederick S. Siebert said that the press of the United States found itself in possession of greater freedom to gather, publish, and comment on the news than ever before in history.121 Governor Herman Talmadge of Georgia urged books dealing with better race relations be burned.122 1943 George F. Booth, publisher of the Worcester, Mass., Telegram and Gazette, said: The freedom of the press is not primarily for the protection of newspapers and other publications; it is for the protection of the right of the whole people. With the right of free speech, free press is the greatest protection against tyranny that we as a people possess. A free press is the organ through which democracy breathes. l23 Robert E. Cushman said: The ultimate responsibility for the protection of freedom of speech and press rests upon people like ourselves, the ordinary citizens whose ideas and feelings taken together constitute what we call American public opinion. Within the legal barriers set up by the Constitution and the courts to protect free speech and free press, there remains ample room for the play of legislative and executive intolerance and repression when supported or instigated by an excited and brutal opinion. Freedom of speech andfreedomof press will be effectively preserved in this country only if people themselves value these vital civil liberties and demand that they be protected.124 The Federal Trade Commission had the authority to prohibit false advertising since the courts had ruled that commercial speech in advertising was not protected by the First Amendment.l25 1944 Michael Bradshaw said that if the people can trust the press they will come to its rescue. Freedom of the press can be endangered by the slanting of local news. m Karline Brown said, "History bears articulate testimony against censorship and (against) the sagacity of the censor." 127 Henry S. Canby, in a letter to the editor of the Saturday Review, said that any

1925 Through 1949 / 135 word in the great English language is a good one if honestly and properly used.128 Erwin D. Canham, of the Christian Science Monitor, said, "Freedom of the press is never going to be impaired in the United States for very long unless American newspapers and newspaper men let it happen here. We are the basic masters of our destiny. Upon what we do depends what happens to us." 129 Norman Cousins, editor of The Saturday Review, made the post office back down on its threat not to mail copies of his magazine containing ads about Strange Fruit. Cousins said, "We not only protest your order; we refuse to follow it without due process of law." 13° General Dwight D. Eisenhower said, "Freedom has its life in the hearts, the actions, the spirit of men and so it must be daily earned and refreshed also like a flower cut from its life-giving roots, it will wither and die." 131 Herman Ould told the tercentenary celebration symposium for Milton's Areopagitica that "books are the lines of communications between free men, and it is not merely out of caprice but for more sinister reasons that dictators burn, ban, and mutilate books." l32 Arthur B. Tourtellot said, "The free press vindicates the special right guaranteed it in direct proportion to the truth of its news and the honesty of its opinions." 133 Wendell L. Wilke, politician and banker, said, "I believe in America because in it we are free—free to choose our government, to speak our minds, to observe our different religions. Because we are generous with our freedom, we share our rights with those who disagree with us." I34 1945 In a press conference in Moscow, General Eisenhower said, "I... will die for the freedom of the press, even for the freedom of newspapers that call me everything that is a good deal less than ... a gentleman." Morris L. Ernst said, "[Freedom of speech and of the press also] means freedom for the rest of us to read and to hear; and that includes, if it is to be effective, chances to get information and ideas from a number of sources." 135 More than 100 pubhcations, mostlyfromthe extreme right wing, were suppressed during World War II. I36 The House Un-American Activities Committee investigated seven radio news commentators to determine how far the nation could go with free speech. The FCC ruled that broadcasters should provide or sell time under the fairness rule to interest groups wishing to present viewpoints.

136 / Achieving New Concepts of Free Expression Arthur Sulzberger, publisher of the New York Times, appealed to an audience of publishers to teach that freedom of the press is the right of the people and not of publishers.137 Earl L. Vance asked: Isfreedomof the press to be conceived as a personal right appertaining to all citizens, as undoubtedly the Founding Fathers conceived it; or as a property right appertaining to the ownership of newspapers and other publications, as we have come to think of it largely today? l38 1946 The Administrative Procedures Act loosened the government's willingness to make records available, but still authorized officials to limit that access, for good cause or for the public interest.I39 Senator William Benton, Connecticut, said: The State Department plans to do everything within its power along pohtical or diplomatic lines to help break down the artificial barriers to the expansion of private American news agencies, magazines, motion pictures, and other media of communications throughout the world. Freedom of the press, and freedom of the exchange of information generally, is an integral part of our society. u o Rep. Helen Gahagen Douglas said, "A vigorous democracy—a democracy in which there isfreedomfromwant,freedomfromfear, freedom of religion and freedom of speech—would never succumb to communism or any other ism." Ml Author Ralph Ellison said that if a word has the potency to revive, and make us free, it also has the power to bind, imprison, and destroy.142 The FCC ruled that its Fairness Doctrine applied to broadcast advertisements, but how it applied to institutional or editorial advertising versus product advertising was confusing. Columnist A. J. Leibling said that freedom of the press is for those who own one.143 Nine Nieman Fellows concluded that the press must assume responsibility for pubhc service or face government control. The readers in the final analysis determine what kind of press the nation is to have.144 Senator Claude Pepper of Florida said that one has the right to be wrong in a democracy.145 Theodore Schroeder argued that obscenity exists only in wishful or fearful

1925 Through 1949 / 137 thinking, wholly in the feelings of the accusing person, and can never be transmitted by mail, express, freight, or by interstate commerce, with any book, picture, or play. It was said that finding a yardstick for proving a serious book indecent is as difficult as weighing a pound of waltzing mice because of the actions taken against Wilson's Memoirs of Hecate County.lA6 Kenneth Stewart considered the threat to a free newspaper is from monopoly newspaper ownership and profit making.147 1947 Edward L. Bernays, pubhc relations consultant, said that the freedom to persuade and suggest is the essence of the democratic process.l4S A Commission of Freedom of the Press issued a general report on mass communication, newspapers, radio, motion pictures, magazines, and books entitled "A Free and Responsible Press." The Commission itself and its report were generally condemned by the media. Nevertheless, it provided the basis for the social responsibility theory of the press which frequentiy appears in discussions about the role of the press in contemporary society. Among its recommendations were expanded self-regulation of the mass media and repeal of the existing prohibitions of "expressions in favor of revolutionary changes in our institutions" where there is no clear and present danger that violence will result from these expressions. In its formal report, the Commission said: Nor is there- anything in the First Amendment or in our political tradition to prevent the government from participation in mass communications; to state its own case, to supplement private sources of information and to propose standards for private emulation. Such participation by government is not dangerous to the freedom of the press. The press must if it is to be wholly free, know and overcome any biases incident to its own economic position, its concentration, and its pyramidal organization. The press must be free for the development of its own conceptions of service and achievements. It must be free for making its contribution to the maintenance and development of a free society. This implies that the press must also be accountable. It must be accountable to society for meeting the public need and for maintaining the rights of citizens and the almost forgotten rights of speakers who have no press. It must know that its faults and errors have ceased to be private vagaries and have become public dangers. The voice of the press, as far as a drift toward monopoly tends to become exclusive in its wisdom and observation, deprives other voices of a hearing and the pubhc of their contribution. Freedom of the press for the coming period can only continue as an accountable freedom. Its moral right will be conditioned on its acceptance of this accountability. Its legal right will stand unaltered as its moral duty is performed.149

138 / Achieving New Concepts of Free Expression A Committee for the First Amendment was formed to protest attempts of the House Committee on Un-American Activities to smear movies and the press. It stated: "We are a group of five hundred independent private citizens who believe we must take action to inform the American people of the danger to their liberties. Not only the freedom of the screen but also freedom of the press, radio, and publishing are in jeopardy." 15° Judy Garland was quoted by Anne Edwards in her book Judy Garland as saying, "Before every free conscience in America is subpoened, please speak up!" 151 Joel H Hildebrand said, "Scientists need the freedom to consult with each other about atomic energy and their own free press to be effective. Scientists need not only laboratory facilities but also freedom to consult with each other. They need free enterprise and their own free press in order to be effective in their work." 152 William E. Hocking said, "With the rights of editors and publishers to express themselves there must be associated a right to the public to be served with a substantial and honest basis of fact for its judgments of public affairs." 153 Philosopher William Ernest Hocking said that where men cannot freely convey their thoughts to one another, no other hberty is secure.154 President Herbert Hoover pointed out that the only two occasions when Americans respect privacy —when a person is either praying or fishing. I55 Robert Maynard Hutchins, chancellor of the University of Chicago, said: Freedom of the press means freedom from and freedom for. The press must be free from the menace of external compulsions from whatever source. Freedom of the press for the coming period can only continue as an accountable freedom. Its legal right will stand unaltered as its moral duty is performed.156 Attorney Robert G. Ingersoll said, "We need free bodies and free minds—free labor and free thought, chainless hands and fetterless brains. Free labor will give us wealth. Free thought will give us truth." 137 Arthur Hays Sulzberger, publisher of the New York Times, said. I have a profound and deep faith in democracy, and that unless the spirit of man is free I find no point in existence. Man finds his noblest expression in his desire for knowledge and in supplying that knowledge. Ours is a sacred and special mission. The manner in which we perform our duties may well determine the destiny of the world. We can give strength to hberty or selfishly destroy it and ourselves. Let us fight for a free press. Let us make it a reasonable one. I58

1925 Through 1949 / 139 President Harry Truman set up a loyalty and security program for government employees and Senator Joseph McCarthy began his witch-hunt of communists in the government.159 Monsieur Verdoux afilmmade by Charles Chaplin to criticize munitions makers was suppressed after protests by veterans and religious groups. 16° Arleigh B. Williamson argued that safeguards of communication channels should develop codes of social responsibility, improve standards of accuracy, enlarge the group who could discriminate between fact and opinion, and expand the consciousness of the general pubhc that welfare of the individual or the group is inseparable from the welfare of the whole.161 1948 The American Library Association adopted a Bill of Rights which said that no book should be excluded because of the race or nationality, or the political or religious views of the world. Censorship of books must be challenged by librarians in maintenance of their responsibility to provide pubhc information and enlightenment through the printed word.162 David K Berning-Hausen said, "All librarians must become acutely aware of the trend toward suppression of opinion. They must protest against all attempts at censorship and all legislation or acts of government agents that could threaten intellectual freedom." 163 Arthur Brown said: The democratic philosophy is based upon a man's ability to reason, to decide for himself his own best interest, on man's educability, and his conscience. Censorship denies all these premises. Regardless of the issues of truth and falsehood, danger or obscenity, free expression is invaluable for progress. Censorship cannot be justified in a democracy.164 Peter Goldmark developed the long-playing phonograph record. Censors objected vigorously to Alfred Kinsey's Sexual Behavior in the Human Male. l65 The Library Bill of Rights was adopted by the American Library Association despite criticism. m Philadelphia pohce seized 2,000 copies of 18 bodes they considered obscene. The Pennsylvania law didn't require a warrant.l6? The Society of Professional Journalists contended, "The whole structure of human

140 / Achieving New Concepts of Free Expression rights in a world of free men with governments of their own choosing rests upon one basic right—the right to know." l68 Television broadcasting became widespread. Dorothy Thompson said: A Free press is indeed a press which appeals to reason in the light of facts, and one in which ownership and direction respect truth and reason. In our country it seeks to pay its bill by pleasing its readers. And if readers also respect the truth, they will keep it free, and make it more so. 169 1949 Philip Bergson said, "Censorship of televisions film programs by state authorities represents a radical departure from the concept of uniform regulation and imposes a heavy economic burden that will fatally retard the development of the infant industry."170 Writer James T. Farrell said, "The danger of censorship increases in proportion to the degree to which one approaches the winning of a mass audience." m Hans Hoffinan, a painter, said, "Our Constitution is a great work of art; it must not be destroyed by mediocrity. Let a free press and a creative critic speak. Long live the arts and the artist in a free future." 172 The House Un-American Activities Committee accused ten Hollywood writers and directors of being agents of un-American propaganda in motion pictures. The movie industry blackhsted them for refiising to testify, and the House held them in contempt. Leonard V. Irwin pointed out that the inevitable effect of attempts at private censorship would not only endanger the right of a free speech for everyone, but also bring about within minorities the very kind of attitude the restrictions we're seeking to avoid.l73 Robert D. Leigh, director of the staff for the Hutchins Commission on Freedom of the Press, said: The focus changes from free individual expression as a right, to the primary need of the citizen everywhere, to have regular access to reliable information, and also, ready access to the existent diversity of ideas, opinions, insights, and arguments regarding public affairs. This does not deny freedom, but it joins freedom with a positive responsibility that freedom shall serve truth and understanding. The concept of responsibility, carried to its logical conclusion, may even imply defining a clearly harmful class of public communications which

1925 Through 1949 / 141 falls outside the protection of freedom itself.174 Critic H. L. Menkin said that a newspaper is a device for making the ignorant more ignorant and the crazy crazier. l75 The New York City Board of Education banned The Nation magazine from city high schools.176 Richard Nixon said: I believe a committee should make a thorough investigation of this type of art in government buildings with the view of obtaining removal of all art that is found to be inconsistent with American ideals and principles.177 J. Robert Oppenheimer said in Life magazine, "As long as men are free to ask what they must, free to say what they think, free to think what they will, freedom can never be lost, and science can never regress." l78 The Library of Congress awarded Ezra Pound the Bollinger prize for poetry even though he was in jail for treason. Pound was sentenced in 1945 to 13 years for making broadcasts on Italian radio.179 The first general order of the Public Information Office of the Department of Defense applied military censorship to military personnel in time of peace. The Report on Editorializing by Broadcast Licensees issued by the FCC presented comprehensive statements establishing a new doctrine. The Commission beheved that the fairness doctrine was justified by the pubhc interest part of the law, because of the scarcity of available licenses, because such a plan would enhance First Amendment opportunities for all, and because it would keep one agency from monopolizing content. Part one required affirmative presentation of news of public interest or issues. This meant the broadcaster had to actively provide for the presentations of various viewpoints. Part two specified that the presentation of news and comment in the pubhc interest required the hcensee to operate on a basis of overall fairness making facihties available for the expression of contrasting views of all responsible elements in the community as various issues arise. The third part removed the ban on station editorials. Elmer Rice, a television commentator, said that the supreme freedom is the freedom to think, talk, and write with independence and without threat. 180 Humorist Will Rogers said that a country can get more real joy hollering for their freedom than they can if they get it. l81 The Society of Professional Journalists began issuing annual freedom of

142 / Achieving New Concepts of Free Expression information reports because "the whole structure of human rights in a world of free men with governments of their own choosing rests upon one basic right—the right to know." Joseph C. Williams said: Freedom of expression is the right of every citizen; it is a right because such expression is of benefit to the community. Obviously, then, the community through the government may at any time limit this right for its own protection. This protection is called censorship, and such censorship is vital to democracy.I82

Chapter 11

FREEDOM OF EXPRESSION AT MID-CENTURY 1950 THROUGH 1959 General Events and Perspectives 1950—Charles F. Ransom, author, said, "You always have to compromise somewhat between 'the best' and 'the most in demand'—between what the community needs, what it wants, and what it will stand for. But any attitude which goes all out to avoid controversy is a betrayal of intellectual trust, and self-defeating at that." * Saunders Redding, historian, said thatfreedomis a precious thing, a completely unpredictable thing.2 Eleanor Roosevelt while First Lady at the White House, said, "We must preserve our right to think and differ. The day I am afraid to sit down with people I do not know because five yearsfromnow someone will say five of those people were Communists and therefore you are a Communist—that will be a bad day."3 1952—Martin Luther King, Jr., civilrightsactivist, said, "Under God we were born free. Misguided men robbed us of our freedom."4 John W Raper, a writer, said that we have plenty offreedomin this country but not a great deal of independence.5 Anne Roe, in her The Making ofa Scientist, said thatfreedombreedsfreedom.Nothing else does.6 1954—Elmer L. Davis, broadcaster, said thatfreedomcan be retained only by eternal vigilance which has always been its price.7 1955—Eustace Cullinan, writing in The American Bar Association Journal, said, "To poison pubhc opinion by falsehood and half truths is in a fashion a form of treason in this country." 8 1956—William Faulkner, novelist, said, "The writer's only responsibility is to his art. Systems pohtical or rehgious or racial or national—will not just respect us because we practicefreedom;they will fear us because we do. We must be free not because we

144 / Freedom of Expression at Mid-Century claimfreedombut because we practice it." 9 Joseph J. O'Meara, religion writer, said, "The contest between freedom and authority, even in a democracy, is an unequal contest, with the advantage on the side of authority, for authority has power. So freedom should have the benefit of every doubt. No man's rights are safe unless all men's rights are respected." !0 Harry Truman said in 1956, "I never give them hell. I just tell the truth and they think it's hell." " Freedom of Expression 1950 Albert Einstein said, "News alone cannot secure freedom of expression; in order that every man present his views without penalty there must be a spirit of tolerance in the entire population."12 Newspaper publisher Paul Miller said, "Our idea of a free press is not a press free for editors and publishers. Our idea of a free press is one that is free to and does provide full information on all possible subjects for all of the people it serves."13 Newspapers and wire services charged that government agencies were suppressing the news. Oflset printing became highly developed during the 1950s. It became the method used in nearly all printing within the next twenty years. Oklahoma's American Legion forced a librarian out of her job because she subscribed to the Nation for the library. In discussing fair comment as a libel defense for the Wisconsin Law Review, Frank Thayer, journalism educator, said, "Fair criticism, though embarrassing and often severe, helps to crystallize public opinion and focus attention on merits and defects in human activity. To comment fairly on what is in the pubhc interest tends to make better art, government, or business. The limits of fair comment are broad, yet every individual is not destines to suffer injury to reputation because these limits are extended." 14 President Harry Truman said, "Once a government is committed to the principle of silencing the opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." 15 He also said, in a message to the House of Representatives, when discussing his veto of the McCarren Act, that, "To permit freedom of expression is primarily for the benefit of the majority because it protects criticism and criticism leads to progress. We need not fear the expression of ideas—we do need to fear their suppression. There is no more fundamental axiom of Americanfreedomthan the familiar statement: In a free

1950 Through 1959 / 145 country we punish men for crimes they commit but never for the opinions they have." President Harry S. Truman vetoed the Internal Security Act of 1950 which required Communists to register. He referred to it as the greatest danger to freedom of speech, press, and assembly since the Alien and Sedition laws of 1798. Congress over-rode his veto, and the Supreme Court deemed it constitutional in 1961. 1951 An Air Force general imposed a news black-out because he didn't like the way The Ft. Worth Press was edited. But the paper won the battie in six days to lift the black-out. Alan Barth, a writer, said that loyalty in a free society depends upon the toleration of disloyalty. Criticism and dissent are the indispensable antidote to major delusions.16 Martha T. Boaz, librarian, said, "In light of the First Amendment to the Constitution, we believe that it is not only desirable, but essential to curb censorship and to promote freedom of speech in order to maintain a free world." 17 The Federal Security Administrator ordered Charlotte Towle's book Common Human Needs destroyed because the American Medical Association said it was viciously anti-American and advocated state socialism. The New York Board of Regents closed the showing of the Italian film, The Miracle. Leo Pfeflfer asked, "Shall American democracy continue the Jeflfersonian tradition of freedom in religion, or shall we return to the Augustinian dogma of the duty of the state to extirpate heresy." 18 Alexander Trachtenberg and fifteen others were indicted under the Smith Act for teaching Marxism, Leninism, and publishing more than 40 books through the International Publishing Company.I9 1952 A. Whitney Griswold, president of Yale University, told students at Phillips Academy in New Hampshire that "Books won't stay banned. They won't burn. Ideas won't go to jail. In the long run, the censor and the inquisitor have always lost. The only sure weapon against bad ideas, is better ideas. The source of better ideas is wisdom. The surest path to wisdom is a liberal education." M Victor Jose, editor of a community newspaper, said that freedom of the press begins at home. If small town newspapermen can make the principle of "official records are pubhc records" a reality in their communities, no restriction in Washington will stop them.21 Latuko, afilmmade by the museum of Natural History and which had pictures of

146 / Freedom of Expression at Mid-Century nude people, was banned in New York City.22 Ohio state censorship was abolished for films by the Department of Education which had inherited that chore in 1921. n Poet Archibald MacLeish said that the dissenter is every human being at those moments of his life when he resigns momentarily from the herd and thinks for himself.24 W D. Patterson, writer, said, "The answer to censorship in a democracy is the progressive education of the public taste to reject the bad and demand the good, without recourse to official censors or to the extremism of many private pressure groups." M B. K. Sandwell, television critic, pointed out that since channels of communications are limited, every citizen cannot have an absolute right to speak over the radio. "Somebody has to determine who shall speak over the radio and who shall not. Other media are available to citizens."26 James M. Smith, attorney, wrote, "If people cannot communicate their thoughts to one another without running the risk of prosecution, no other liberty can be secure because freedom of speech and of the press are essential to any meaning of hberty."27 Senator Margaret Chase Smith said in her Declaration of Conscience which she and six other Republicans signed: Those of us who shout the loudest about Americanism in making character assassinations are all too frequently those who by their own words and acts, ignore some of the basic principles of Americanism: the right to criticize, therightto hold unpopular beliefs, the right to protest, and therightof independent thought. The American people are sick and tired of being afraid to speak their minds lest they be politically smeared as communists or fascists by their opponents. Adlai E. Stevenson, candidate for president told the state committee of the Liberal Party in New York that: I yield to no man—if I may borrow the majestic parliamentary phrase—I yield to no man in my belief in the principle of free debate, inside or outside the halls of Congress. The sound of tireless voices is the price we pay for the right to hear the music of our own opinions. But there is also, it seems to me, a moment at which democracy must prove its capacity to act Every man has aright to be heard; but no man has the right to strangle democracy with a single set of vocal chords. M Leo Strauss, author, argued that threats of persecutions had caused writers to write the truth between the lines so only trustworthy and intelligent readers, not all the

1950 Through 1959 / 147 readers, could discern that truth. w The Television Code of Good Practices was enacted by the Television Board of the National Association of Broadcasters. M 1953 President Dwight Eisenhower said, "Don't join the burners. Don't be afraid to go to your library and read every bode, as long as any document does not offend your own ideas of decency; that should be your only censorship."31 Julius O. Adler, journalist, said, "Democracy will survive as a system of government only where the individual citizen has access to all information that is necessary for sound judgment."32 The American Bar Association resolved that the freedom to read is a corollary of the constitutional guarantee of the freedom of the press and American lawyers should oppose efforts to restrict it.33 A letter read at the 1953 American Library Association Conference contained this sentence, "The libraries of America are and must ever remain the home of free inquiring minds."34 The Gathing Committee Report on Pornographic Books recommended that the House of Representatives give strong powers to the Post Office to impound obscene mailed materials.35 Gerald W Johnson, journalist, said: We are reluctant to admit that we owe our liberties to men of a type that today we hate and fear—unruly men, disturbers of the peace, men who resent and denounce what Whitman called "the insolence of elected persons"—in a word,freemen. Freedom is always purchased at a great price, and even those who are willing to pay it have to admit the price is great. * J. Ben Liskerman, journalism educator, in "Restating the Concept of Freedom of the Press" for the Journalism Quarterly, wrote: The only answer to those who insist on confusing responsibilities with freedom of the press is to go back to first principles. Freedom of the press still rests, therefore, on the faith that public policy is better served by absolutely uncontrolled expression on political matters than by any method of control, no matter how benignly devised.37 The greatest menace to free journalism according to Mary T. McCarthy, journalist, is "the conceptualized picture of the reader that governs our present day journalism like some unseen autocrat. The reader, in this view, is a person stupider

148 / Freedom of Expression at Mid-Century than the editor, whom the editor both fears and patronizes." M Elmer L. Rice, broadcaster, said, "No objective observer can have failed to note, in the past 20 years, an accelerating deterioration in our standard of freedom, particularly expression of freedom."39 James R. Wiggins, librarian, said: Man must have the right to discover the truth. They must have the right to print it without the prior restraint of pre-censorship of government. They must have the right to put printed material into the hands of readers without obstruction by government under cover of law, or obstruction by citizens acting in defiance of the law. ^ 1954 Henry Steele Commanger, an author and historian, said, "Censorship always defeats its own purpose, fa- it creates the kind of society that is incapable of exercising real discretion."41 President Dwight Eisenhower issued an executive order forbidding military persons to provide information to a subcommittee investigating a controversy between Senator McCarthy and the Army. The order soon became the basis for all government agencies to withhold informationfromthe press. This action casts some doubt whether he fully understood the meanings of these comments he made in speeches: There must be no weakening of the codes by which we have lived—of your right to speak your mind and be protected in it. Here in America we are descended in blood and spirit from revolutionists and rebels—men and women who dared to dissent from accepted doctrine. As their heirs, we may never confuse honest dissent with disloyal subversion.42 Alabama had a law requiring that every book used in schools or colleges have a label indicating whether or not its author was an advocate of socialism.43 Adlai E. Stevenson, political candidate, said that all progress has resulted from people who took unpopular positions. u Arthur H. Sulzberger wrote, "discussion is being restricted. A smoke screen of intimidation dims essential thought. It isn't the super-zealots who bother me so much as the lack of plain, old-fashioned guts in those who capitulate to them."45 A Washington correspondent of a New York newspaper reported that the United States Information Agency had a blacklist of 7,000 writers, authors, and composers who were avowed communists, or who had invoked the Fifth Amendment, or who had committed crimes involving national security, or for some reasons not specified. *

1950 Through 1959 / 149 1955 Carroll Binder, Chicago Daily News foreign news director, said, "Large doses of government secrecy, like large doses of patent medicines, may destroy the body we are trying to save."47 The trade association of book pubhshers, through its council, began pubhcation of a Censorship Bulletin. * John H. Griffin, author, wrote, "Censorship, by depriving the community of the right of access to serious works because it cannot distinguish pornography from realism thereby commits mankind to a cultural and ethical hara-kiri."49 The Harvard Law review contended the Customs Bureau and the Post Office were undertaking a program of excluding propaganda materials from nations critical of the United States. Legal authority to do so was doubtful. Columnist Walter Lippman said: Afreepress is not a privilege but an organic necessity in a great society. Without criticism and reliable and intelligent reporting, the government cannot govern. For there is no adequate way in which it can keep itself informed about what the people of the country are thinking and doing and wanting. The theory of free press is that the truth will emerge from free reporting andfreediscussion, not that it will be presented perfectly and instantly in any one account. *° Post Office officials seized a copy of the 1926 translations of Lysistrata. When challenged, the Post Office delivered the book, but only because it was not for general distribution. Alexander Meiklejohn, educator, said that suppression is always foolish. Freedom is always wise.51 The National Organization for Decent Literature was set up in Chicago to ban hterature that was lascivious and threatened moral, social, and national life. Its list of banned books included ones by Hemingway, Faulkner, Dos Passos, Orwell, O'Hara, and Zola.52 George Seldes, press critic, said, "For the first time in American history, the press, which Jefferson described as playing a greater role in a democracy than government itself, is under sustained attack from the right—the reactionary or potentially fascist element in the United States."53 The Record of the Bar Association of New York City said, "The Association of the Bar of the City of New York opposes the attempts of any individuals or group, private or public, to interfere in any manner with the publication, circulation, or

150 / Freedom of Expression at Mid-Century reading of any pubhshed matter, other than by means of regular applicable statutory procedures and standards."54 George Sokolsky, columnist, said the policy of the Post Office of increasing ignorance by refusing to allow Russian publications to pass through the mails was wrong. "I cannot know what I'm talking about in opposing communism unless I have the freedom to read what the other side publishes."55 Americanfilmdistributors cut 22 minutes from the French film, Wages of Fear, because they showed friction between an American company located on foreign soil and the local population. * 1956 The Citizens for Decent Literature had 300 chapters. There was a Churchman's Committee for Decent Publications. There also was a Catholic National Office for Decent Literature. California had its CLEAN project. The Motion Pictures Production Code was liberalized so movies could deal with several topics previously taboo.57 A. J. Liebling, journalist and critic of journalism, said, "People everywhere confuse . . . what they read in newspapers with news."58 Simon E. Sobeloff, media executive, said, "The editor and the judge are set apart from other citizens; only they may act as guardians of other men's liberties."59 Arthur Hays Sulzberger of the New York Times said that the vital measure of a newspaper is not its size but its spirit—that is its responsibility to report the news fully, accurately and fairly. *° Orson Welles, filmmaker and actor, said, "I hate television. I hate it as much as peanuts. But I can't stop eating peanuts."61 1957 The American Society of Newspaper Editors declared that people have an inherent right to know, to gather information, to publish, and to distribute without censorship or prior restraint or punishment without due process.62 Communist pubhcations failed to convert anyone to their viewpoints; nonetheless, the government indicted 100 persons for 15 trials under the Smith Act, which was repealed in 1978.63 An editorial in the Des Moines Register said, "Universities need to be places where freedom to speak one's mind, to probe and investigate, is a way of life." Laurence Lipton, critic, wrote in "50 Million Censors Can't Be Wrong" in Frontier, the Voice of the New West that:

1950 Through 1959 / 151 No matter how you may try to hedge it about with safeguards, legal censorship is the imposition of force, pohce force, on thought, art, judgment, and conscience; in such matters 50 million censors, or more, acting for themselves alone, are better than any one censor with legal police power. At the newstand or in the bookstore, as in the polling booth, the people have a right to make their own mistakes. ** Lady Chatterley s Lover by David Lawrence and Ulysses by James Joyce finally were circulated freely after years of suppression by the government units or other agencies.65 Between 1947 and 1957 at least 24 novels were banned or blacklisted in the United States. Lolita was approved by Customs Officials for importation into the United States, but France would not allow it to be exported. * A declaration presented at the National Assembly of Authors and Dramatists in New York City by the Authors' League of America states: While recognizing that public welfare requires certain safeguards against unrestrained obscenity, direct incitement to crime, and defamation of character, there has been a dangerous drift in the United States toward censorship, coming mainly from a few religious and patriotic organizations. The League denies the right of any individual or group to set limits on the freedom to write, publish and distribute writings.67 Hugh B. Terry said, "When John Gilbert Graham planted a time-bomb aboard an airliner, he indirectly aided in a substantial victory of Colorado news broadcasters over restrictions of Canon 35. State radio and television newsmen banded together to convince their judges that electronic reporters can cover a trial with fairness." ** 1958 Frank H. Bartholomew, president of the United Press, told students at the University of Wisconsin that the handout and the spokesman threaten our diligence, our ingenuity, our skepticism, our zeal. For zealots we must be. Not for a cause. For facts and for truth—and all of the truth. Erwin Canham, editor of the Christian Science Monitor, said, "The day of the printed word is far from ended. Swift as is the delivery of the radio bulletin, graphic as is television's eyewitness picture, the task of adding meaning and clarity remains urgent. People cannot and need not absorb meanings at the speed of light." ** A Florida state librarian urged libraries to withdraw such books as Uncle Wiggly, Tom Swift, Tarzan and The Wizard ofOz because they "were poorly written, untrue to life, sensational, foolishly sentimental, and consequently unwholesome for children."

152 / Freedom of Expression at Mid-Century Edward R. Murrow, broadcaster, said, "Most of us probably feel we couldn't be free without newspapers, and that is the real reason we want the newspapers to be free. It is well to remember thatfreedomthrough the press is the thing that comes first. Most of us probably feel that the real reason we want the newspaper is to be free."70 Chalmers Roberts in Newsweek said, "The trouble with daily journalism is that you get so involved with 'Who hit John?' that you never really know why John had his chin out in the first place."71 Herbert Bayard Swope while editor of the New York World wrote to the New York Herald-Tribune that the first duty of a newspaper is to be accurate. If it be accurate, it follows that it is fair. n President Harry S. Truman said, "I don't mind it when [the press] throws bricks at me. I'm a pretty good shot myself and I usually throw 'em back."73 Arthur L. Witman said, "Gains are being made in some states in relaxing restrictions against courtroom camera but photographers believe now is the time to launch a frontal attack on this outmoded bar rule."74 Jack Kilby and Robert Noyce invented the semi-conductor which led to a total change in media.75 Henry J. Raymond of the New York Times said: Thefreepress in all the world has but one common mission—to elevate humanity. Journalism must be the champion of the humble, the lowly, and the poor against those who from mere position and power hold in their hands the destinies of the lowly and the poor.76 1959 Congress passed an amendment to the 1934 Communications Act which gave statutory status to the fairness doctrine but that exempted news presentations from its requirements. The equal access requirement for the pohtical candidates was established by the FCC for radio and television broadcasts. It did allow some exceptions, one of which was denial to Lars Daly, a fringe presidential candidate, who wanted to reply to a major candidate. Novelist Martha Gellhorn said, "Serious, careful, honest journalism is essential, not because it is a guiding tight but because it is a form of honorable behavior involving the reporter and the reader."77 Editor Thomas Griffith said that journalism is in fact, history on the run. 78 Edmund P. Hennelly, advertising executive, said, "Every bill in Congress which affects the freedom from unreasonable restraint of human business affects your

1950 Through 1959 / 153 freedom—even if the bill has no remote connection with freedom of the press. Economic freedom and pohtical freedom are inseparable."79 Elmer L. Rice, broadcaster, said, "There has never been a theatrical censorship, nor sort of play-licensing system, either nationally, or as far as I know, in any of the states." » Frederick M Wirt, motion picture executive, said, "Films have been censored in the United States, as in other countries, for many years. Recently, however, censorship statutes have proved increasingly unpopular."81

Chapter 12

THE DECADE OF THE 1960s 1960 THROUGH 1969 General Events and Perspectives 1961—In his inaugural address, President John F. Kennedy said: In the long history of the world, only a few generations have been granted the role of defendingfreedomin its hour of maximum danger. I do not shrinkfromthis responsibility, I welcome it. On another occasion he said that we stand forfreedom,that is our conviction for ourselves; that is our comittment to others. Congressman O.K. Armstrong said that the strongest weapon that we hold in our hands is truth itself.l 1964—Senator J. William Fullbright said, "We must learn to welcome and not to fear the voices of dissent We must dare to think about 'unthinkable things' because when things become unthinkable, thinking stops and action becomes mindless."2 Eric Hoffer, longshoreman, said, "There can be no real freedom without the freedom to fail."3 1965—Senator Hubert Humphrey in a 1965 speech in Milwaukee said that the right to be heard does not automatically include therightto be taken seriously.4 1966—President Lyndon B. Johnson, in a speech honoring the Presidential Scholars at the White House, said that opinion and protest are the life and breath of democracy—even when it blows heavy.

1960 Through 1969 / 155 John Killens, author, said, "What a tiresome place America would be if freedom meant we had to think alike and be the same color and wear the same gray flannel suit." 5 1967—Samuel T. Ragan said, "The First Amendment and the Sixth Amendment are not incompatible. Instead, they go in hand-in-hand in the search for truth and justice, and one cannot be diluted without damage to the other."6 Freedom of Expression 1960 The China Lobby pressured Macmillan in 1960 to stop distribution of Ross Y. Koen's The China Lobby in American Politics. Four-thousand copies were destroyed. Right-wing groups stole many of the remaining 800 copies from libraries, even placing copies of The Red China Lobby in their place. The few remaining copies are locked up as rare books by librarians.7 Eric Johnson, president of the Motion Pictures Association of America, urged a crusade for freedom of choice instead of censorship. When Congress suspended the equal access rule for presidential candidates, the major networks gave 39 free hours of television broadcast time to major candidates. Journalist Jay Crouse said, "Off-the-record conferences are subterfuge which stifle the voice of the press and deprive the people of the right to know."8 Paul Goodman, a psychologist, said, "When there is official censorship it is a sign that speech is serious. When there is none, it is pretty certain that the official spokesmen have all the loudspeakers."9 President John F. Kennedy talked the New York Times into not reporting the Bay of Pigs invasion plans, but admitted that if the press had fulfilled its watchdog role, it could have saved the U.S. from a disaster.10 President John F. Kennedy said: It is never pleasant to read things that are not agreeable news, but I would say that it is an invaluable arm of the Presidency to check on what really is going on in the administration. And more things come to my attention that cause me a terrific advantage to have the abrasive quality of the press applied to you daily, to an administration, even though we never like it, and even though we wish they didn't write it, and even though we disapprove, there isn't any doubt that we could not do the job at all in a free society without a very, very active press.11 He also said, "American libraries should be open to all—except the censor. We

156 / The Decade of the 1960s must know all the facts and hear all the alternatives and hsten to all the criticism. Let us welcome controversial books and controversial authors. For the Bill of Rights is the guardian of our security as well as our hberty." President Kennedy abolished the practice or mail interception, but Congress responded by passing a law to allow it. Broadcaster Edward R. Murrow said, "It is well to remember that freedom through the press is the thing that comes first. Most of us probably feel that the real reason we want the newspaper is to be free." u Isidor R. Rabi said that "to live at peace with the atom we must find our way back to the fundamental principles on which this republic was founded. We must again become a nation of free men informed by a free press." 13 1961 Marjorie Holmes, a mother asking for control of sexual material in media and movies, said: Movies glorifying prostitution, books that smile at adultery, even songs about infidelity—that is what we have tolerated until smut has finally taken over. What's the next step—the acceptance by society of complete sexual freedom with all its consequences? M After the Bay of Pigs fiasco, President Kennedy told Turner Catledge, editor of the New York Times, that "if you had printed more about the operation you would have saved us from a colossal mistake." He also blasted the press and demanded more cooperation from the American Newspaper Publishers Association, saying, "Every newspaper now asks itself in regard to every story—Is it news? All I suggest is that you add the question—Is it in the interest of national security?" 15 Worthington Miner said: When all searching into politics, religion, and sex are removed—when every 'damn' and 'hell' is gone—when every Italian is no longer a 'wop' and every Negro is no longer a 'nigger'—when every gangster is renamed Adams and Barlett, and every dentist is an incipient Schweitzer, when, indeed, every advertiser and account executive smiles—what is left? Synthetic hogwash and violence!16 Newton Minow, an attorney, said that censorship strikes at the taproot of our free society.17 Two officials of Planned Parenthood of Massachusetts were arrested for providing information about contraception.I8 Discussion in America means dissent, according to James Thurber, cartoonist. 19

1960 Through 1969 / 157 Author Barbara Tuchman said, "To be a bestseller is not necessarily a measure of quality, but it is a measure of communication."20 William V. Ward was charged by police in Provincetown, Massachusetts, of publishing pornography in his short story "Tralala" in the Provincetown Review.21 1962 Donald L. Ayres said, "This does not mean to censor and withdraw every work offictionby a questioned author from the library shelves as all too often has been the case. Rather it means convincing the parents the school merits their confidence in educating children along socially acceptable lines."22 Alan Barth said, "A press which serves faithfully and fearlessly as a censor of this government is a source of great national strength." M John Ciardi said, "Tropic of Cancer must be defended, but not as a great book. It must be defended as the work of a serious artist enlarged by talent and passionately engaged in giving form and thereby meaning to his view of life."24 Communist political propaganda could be withheld by the Post Office until the addressee asked for it in writing under provisions in the Postal Services and Federal Employees Salary Act. M Robert B. Downs said, "Banning a book automatically creates a universal desire to read it and frequently makes a bestseller out of a mediocre work that would otherwise be overlooked. Censorship, furthermore, is futile since ideas cannot be killed by destroying the book which contains them." M Donald L. Gillmore reported, "Although there appears to be a relationship between Christianity and democracy, of which freedom of expression is a part, concomitant variables also need to be considered. An examination of the world's great religions suggests that few of them, when considered in isolation, are incompatible with press freedom."27 Lloyd E. Gressle said, "When the clergyman moves into the areas of censorship he runs the danger of playing God and dictating to others on the basis of taste; the church cannot meet the problem of obscenity unless it sheds its pose of self-righteous respectability and meets it with keen insight based on all the scientific factors available." M Jay W Jensen said, "What is most urgently required for the rehabilitation of the concept offreedomof the press is a new metaphysics—a metaphysics that will restore what Positivism, Romanticism, Collectivism, and other derivative isms have lately destroyed: an image of the self as ontologically related to an objective order of

158 / The Decade of the 1960s values."29 Jenkin Loyd Jones, editor of the Tulsa (Okla.) Tribune, said, "Let there be a fresh breeze of new honesty, new idealism, new integrity... You have typewriters, presses, and a large audience. How about raising hell?" M President John F. Kennedy said: We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is afraid of its people.31 Pentagon officials and employees were ordered to report the substance of each interview and telephone conversation with a media representative before the close of business on the day such contacts occurred. Thirty-four states had laws permitting the press to inspect public records and 28 had open meeting laws.32 W M S. Russell said, "The dividing line between what is permitted and what is suppressed never seems to be in the same place. It wobbles. The pattern of society changes and the line shifts with it."33 The Teamsters Union refused to deliver the Cleveland Press until certain ads were deleted. 1963 The California State Board of Education returned the American Dictionary of Slang to use at Carlsbad High School even though the State Superintendent of Public Instruction opposed the book. Thomas I. Emerson said the general and contemporary theory of the First Amendment rests on the conclusions that the essence of a system of free expression lies in the distinction between expression and action and in the conclusion that a modern democratic society demands a deliberate and affirmative and aggressive effort be made to support the system of free expression.34 Edward Godon said, "English teachers do not ask a license to put sensationalism in the hands of students, but they do ask that they may be allowed to teach to mature students the books that reputable critics feel make up our literacy heritage."35 Louis Henkin said: I believe, despite common assumptions and occasional rationalizations, that obscenity laws are not principally motivated by any conviction that obscene materials inspire sexual offenses. Obscenity laws, rather, are

1960 Through 1969 / 159 based on traditional notions rooted in this country's religious antecedent, governmental responsibility for communal and individual "decency" and "morahty." * Elizabeth D. Hodges said, "A school library with a defensible book collection, a united faculty, a weh-informed supporting pubhc, and a plan of action in case of attack should be able to offer a formidable front to any assault upon freedom to read."37 Arthur Krock said: Every president after Jefferson has professed agreement with Jefferson's concept that the freedom of the American press to print its versions of the facts, background and likely consequences of human events was a constitutional principle permanently reserved from any form of interference by government Consequently, Jefferson denounced...either direct or indirect attempts by government to do what in current parlance has become known as "management of the news."38 William Landau, a neurologist, accepted a stormy appointment on the St. Louis County Council Decent Literature Commission in an effort to keep that council from censoring literature.39 Anthony Lewis said, "Applying steady pressure, nine calm men are dragging the censor, kicking and screaming into the twentieth century. Gradually, without much notice but with developing momentum, the court has cut back the censor's power over literature and the arts generally." *° Naked Lunch was banned in Boston.41 Daniel H Pollitt said, "The last place in a democracy to expect restrictions on the thinking process is in a university or college. Yet the censorship of ideas in such institutions is not rare." 42 Carl Rowan, columnist, said in the New Yorker that there are no embarrassing questions, only embarrassing answers.43 1964 Wells D. Burgess said, "It would appear, therefore, that even if the uncertainty and unfairness involved in distinguishing between work of artistic merit and worthless work is overcome, the Court's refusal to extend First Amendment protection to nonartistic work is open to question." u The book Candy was banned in Chicago. Chicago launched an extensive program of book banning which became the most repressive in the nation.45 There were 20 government classifications above "top secret" and some were so

160 / The Decade of the 1960s secret that their names were kept secret. * Lrvin S. Cobb said, "If the depth of the dirt exceeds the breadth of the wit, then in my opinion the book is obscene."47 Former President Dwight Eisenhower told delegates to the Republican National Convention that they should not let themselves "be divided by those outside our family including sensational-seeking columnists and commentators." President Dwight D. Eisenhower said, "When you come down to it, I don't see that a reporter could do much to a president, do you?" * A Nassau County vice squad seized 21,000 copies of the April-May issue of Evergreen Review because it contained portfolios of nude photos taken by Emil J. Cadoo.49 NBC provided false press credentials to FBI agents posing as reporters at the Democratic National Convention. The FCC declined to be an arbitrator of radio programming standards and indicated the stations should have wide latitude in program content and selection. The equal access rule for political candidates for president was applied in such a way that only 414 hours of free time for campaigning was provided in 1964 in contrast to the 39 free hours in 1960. Between 1960 and 1964, the FCC revoked licenses or denied license renewals to 26 radio and television stations for violations of FCC rules. Harry Golden, author and editor, said that reading is a joy, but not an unalloyed joy. Books do not make life easier or more simple, but harder and more interesting. *° Sumner Ives said: The areas, in which censorship has been imposed, have been, in order, rehgion, government, and artistic expression. The trend has been toward a more and more literal interpretation. The means has largely been shifted from pubhc law to private pressure. And, so far as one can tell, no attempts at censorship have permanently prevented the dissemination of knowledge or of that which has artistic merit.5l President Lyndon B. Johnson said that books and ideas are the most effective weapons against intolerance and ignorance.52 Sterling M. McMurrin, a former U. S. Commissioner of Education, said, "Censorship in the schools that denies intellectual freedom to teachers robs the students of that same freedom. And the freedom to learn is clearly no less precious

1960 Through 1969 / 161 than the freedom to teach."53 The Pittsburgh Post Gazette reported that the New York Times v. Sullivan case and the Brennan opinion erects an essential bulwark for freedom of the press.54 Max Rafferty, California superintendent of education, urged that the Dictionary of American Slang be removed from school libraries. " The Republican platform promised enforcement of legislation to curb the flow througji the mails of obscene material which has flourished into a multi-million dollar obscenity business. Frank Stanton, television executive, said: Electronic communications, in this time of social unrest, offer higher courts of the states and the nation an opportunity fully to bring the people, whom they serve and to whom they are ultimately answerable, within reach of their presence, their intellectual influence, their moral force. To realize this opportunity is clearly in the intent of the court. It is overwhelmingly in the interest of the people. * J. David Stern, a monopolist publisher himself, believed monopoly ownership of the press had made its voice a chorus of castrati.37 Walter Strauss said: Obscenity is that which goes counter to accepted standards of propriety at a given time and place; an erotic work is one which gives serious consideration to physical love; a pornographic work is the degradation and distortion of the erotic. In a healthy society, obscenity should be met with laughter, pornography with a yawn.58 John P. Sullivan said the FCC Fairness Doctrine was unconstitutional, and did not ensure fairness, or respect for a democratic country.59 Richard L. Tobin said, "In overturning the notorious Alabama libel award against the Times, our highest court has handed a stunning victory not only to all communicators in this country but to the American public in re-etching the fundmental principles of the U. S. Constitution's free press guarantee." ^ The Warren Commission dealt with the need for self-restraint. It directly concerned the assassination of President Kennedy and the subsequent killing of the suspected assassin, Lee Harvey Oswald. Although Oswald never had the chance to be brought to trial, he was guilty in the eyes of the nation because of statements made by police, and prosecutors, and broadcast on radio and television and in newspaper.61 James R. Wiggins said:

162 / The Decade of the 1960s It is doubtful that anyone can devise a set of rules or a code of ethics that wouldfreethe pressfromthis burden of life. The best for which we can hope is a press with a sense of values that will inspire them to resolve conflicts of interest in favor of their larger public responsibility as opposed to their narrow individual interests.62 1965 The American Bar Association's Canon 35 was adopted by all states but Texas and Colorado. Press and broadcasting groups objected on the grounds that a newsman with a camera is as much a reporter as a newsman with pencil and paper and has just as muchrightto be in the courtroom. A California legislative committee gave a tryout of the ability of the press to use cameras and recording devices in reporting proceedings of sessions of the California State Legislative Assembly Interim Committee of the Judiciary.63 The American Historical Association and the Organization of American Historians through their joint committee for the defense of the rights of historians under the First Amendment said: It is the first case we know of in which a serious work has been challenged in the Courts, in which the Court has been asked to ban a book, and in which the court has proceeded to hear the suit on the merits. A victory for Miss Frick would be a crippling blow to scholarly study and would eventually shake the very foundation of our great democracy which depends so much on thefreeand unfettered flow and exchange of ideas. An attack on one book is an attack on all learning. A challenge as this case presents is a challenge to all historians. M Lee A. Burres said that the right not to read does not mean therightto keep others from reading.65 Zachariah Chafee had said, "The First Amendment was written by men who intended to wipe out the common law of sedition, and make further prosecutions for criticisms of the government, without any incitement to lawbreaking, forever impossible in the United States." * John Ciardi said, "Someday, and soon I hope, the Supreme Court will hear a book banning case and issue a ruling that not only clears the book, but enunciates legal principles sofirmlythat the everlasting reiterated harassment of books by the lower courts will be brought to a halt." 67 He also said, "The Works of the Marquis de Sade, whether in the present Grove Press edition or in any subsequent selection, should be permitted full legalfreedomto circulate for the simple reason that every book should have thatfreedom."** Henry S. Commanger, historian, said: If government can silence criticism by the argument that such criticism

1960 Through 1969 / 163 might be misunderstood somewhere, thai there is an end to all criticism, and perhaps an end to our pohtical system. We do not need to fear ideas but the censorship of ideas. We do not need to fear excitement or agitation in the academic community, but timidity and apathy. ® Irving Dilhard, editor of the St. Louis Post-Dispatch said, "The basic mission of the pubhc hbrary is to stand firm against those who set themselves up as the censors or attempt in some other way to control the thinking of the community through what it reads."70 The Early Bird Communications Satellite was placed in orbit. William Howes said: From this historical review of the various restrictions on TV drama, one might conclude that regardless of whether programming changes because of television executives, sponsors, critics, or the public—it does change. The careful regulations predicted for television 20 years ago are now obsolete. TV drama may soon enjoy all the freedom of novels, theatre and films.7I President Lyndon Johnson ordered the FBI to investigate news leaks to the Washington Evening Star. The FBI said a book about the Rosenbergs should be kept off television and forced out of the public eye. Police arrested a clerk in the City Lights bookstore for selling Lenore Kandel's poem, The Love Book. n Oliver La Farge was saddened to hear his novel Laughing Boy was banned from public school libraries in Amarillo, Texas. n Congress passed a national Freedom of Information Act, which was broadened to make access to federal materials easier in the amendments of 1974 and 1976.74 Columnist Walter Lippman said: Afreepress exists only where newspaper readers have access to other newspapers which are competitors and rivals, so that editorial comment and news reports can regularly and promptly be compared, verified and validated. A press monopoly is incompatible with a free press; if there is a monopoly of the means of communication, of radio, television, magazines, books, pubhc meetings, it follows that this society is by definition and in fact deprived of its freedom.75 Clare Boothe Luce said, "Censorship, like charity, should begin at home but, unlike charity, it should end there."76

164 / The Decade of the 1960s The Motion Picture Producers Association set up a new code of self-regulation that included labeling films as being suggested for mature audiences only.77 Censorship in school English classes and libraries was widely continued long after the National Council of English Teachers had issued their call for the "Students' Right to Read."78 The Senate report on the bill that created the National Endowment for the Arts said that conformity for its own sake is not to be encouraged, and no undue preference should be given to any particular style or thought or expression, nor is innovation for its own sake to be favored The standard should be artistic and humanistic excellence. The report of the New Jersey Committee for the Right to Read of its survey of New Jersey psychiatrists and psychologists indicated most of these persons believed that reasons to forbid distribution of obscene matter to children under 18-years-of-age were invalid.79 The Reardon report of the American Bar Association was established to give fairtrial free-press guidelines acceptable to the legal profession as a rebuff to the American Newspaper Publishers Association which refused to set up newspaper codes, which the 1964 Warren Commission thought might be a good idea. *° George W Starcher, president of the University of North Dakota, told the American Association of University Professors Bulletin that the real heart of a university is freedom to express and to criticize.8l George Steiner said: The present danger to literature is not censorship or verbal reticence. The danger lies in the facile contempt which the erotic novelist exhibits for his readers, for his personages, and for the language. It is not a new freedom that they bring, but a new service. w Mayor Robert Wagner of New York City appointed 21 persons to a Citizen AntiPornography Commission. He served as chairman. The Commission condemned Tropic of Cancer, Fanny Hill, Candy, and Touch Magazine as obscene. It recommended new laws and vigorous enforcement to protect the morals of children, and the establishment of federal, state and city commissions to identify salacious hterature. 1966 The Chicago office of the FBI approved a break-in of the offices of the Chicago Committee to Defend the Bill of Rights to find out who its financial backers were. John Ciardi said: The right to communicate is a matter of vital public concern embraced

1960 Through 1969 / 165 in the First Amendmentrighttofreedomof speech and is protected from infringement by state officials. The Fourteenth Amendment protects the rights of school children against unreasonable rules and regulations imposed by school authorities. The buttons [worn by school pupils] did not appear to hamper the school in carrying out its regular schedule. The prohibition was arbitrary, unreasonable, and an unnecessary infringement on students' protected right of freedom of expression. Pubhc school officials cannot infringe upon their students' rights of free and unrestricted expression. w Congress passed the Freedom of Information Act to establish the public's right to know. M Richard Elman said, "Unless some means are found to insure absolute press freedom, one cannot rule out the possibility that the medium [of television] will increasingly become the monolithic voice of the bureaucratic state."85 Ervin J. Gaines said in defending freedom of the press, "the only end we envision is the safety of open discussion." w Harry Levin said, "As the courts free more and more books from the contraband shelf, there is not much left in literature that can consistently be banned." ** 1967 The American Newspaper Publishers Association concluded a two-year study of the "people'srightto know." It opposed suppression of the news concerned with law enforcement and judicial proceedings; the press must be vigilant to anything that threatensfreedomof the press. A committee of the Association concluded no conflict exists between the First and the Sixth Amendments. M The final report of a special committee on Radio, Television, and the Administration of Justice to the Association of the Bar of the City of New York said: The First Amendment guarantees of the free speech and free press and the critical importance of the concept of freedom of communication that underlies this guarantee preclude, on both constitutional and policy grounds, direct controls of the mass media by a governmental scheme of legislative or judicial establishment, understood as including the courts and the judges. " Mary Astor, actress, said that audiences will get as tired of people wrestling on a bed as they did of Tom Mix kissing his horse. w Malcolm W Browne said that by and large, Americans are getting the truth about Vietnam despite official efforts to warp it out of shape.91

166 / The Decade of the 1960s Henry Steels Commanger, historian, said in Freedom and Order. We cannot have a society half-slave and half free; nor can we have thought half-slave and half-free. If we create an atmosphere in which men fear to think independently, inquire fearlessly, express themselves freely, we will in the end create the kind of society in which men no longer care to think independently or to inquire fearlessly. If we put a premium on conformity we will, in the end, get conformity. The justification and the purpose of freedom of speech is not to indulge those who want to speak their minds. It is to prevent error and discover truth. There may be other ways of detecting error and discovering truth than that of free discussion, but so far we have not found them. w The Corporation for Public Broadcasting was authorized by Congress. Kenneth A. Cox said, "The First Amendment guards the broadcaster's right to say things of htde importance to anyone; but it also guards his right to discuss matters of vital consequence to all, matters which will shape our lives and the destiny of our country. The choice, in the last analysis, is their own."93 Over several years, the FBI and other federal, state, and local government agencies maintained a vigorous program to harass and destroy underground publications. The FCC issued specific rules covering the right to reply for personal attacks which indicated the right could only apply when an issue of pubhc controversy was involved and an attack on the honesty, character, integrity, or similar characteristics of an identifiable person or group was made. It did not apply to foreign persons, or to attacks made by pohtical candidates or their agents. If die broadcaster attacked the candidate, the broadcaster had to provide time for a prompt reply. M On July 4, the new federal Freedom of Information Act went into effect. It provided that the government had to prove it had a legitimate reason to withhold certain information to protect national security or individuals.95 Ervin G. Gaines said: The crucial error in censorship whether by government or by volunteer groups, is that it presumes that there is an inferior segment of society that requires protection. Censorship is undemocratic because it runs counter to the fundamental assumption that all men have a right to be heard and that, in the market place of ideas, all thoughts are permissible.96 Herbert Gans, sociologist, said: In some ways, the media are an even more important educational institution than the school, for they outrank it in terms of operation and

1960 Through 1969 / 167 audience, in the amount of time and the intensity of interest devoted by that audience and the diversity of course content. ** Lawrence A. Giel reported about the life of George A. Dale, a Muncie, Indiana, editor. He wrote, "He was repeatedly brought to court on trumped up charges, assaulted, shot at, and through pressure deprived of all advertisement." * Vice President Hubert Humphrey, in a speech to the National Book Awards Ceremony in New York, said, "None of us would trade freedom of expression and of ideas for the narrowness of the pubhc censor. America is a free market for people who have something to say, and need not fear to say it." He also said in the speech reported in the New York Times, "The vast number of titles which are published each year—all of them may annoy or even repel us for a time." " President Lyndon Johnson renounced "backgrounder" press conferences from which stories traditionally were written presenting the information without attributing it to any source. Jacqueline Kennedy attempted to censor William Manchester's book, The Death of a President, by court order. But she and the author reached an out-of-court agreement. She had asked him to write the book. John S. Knight said: The American press, despite recent threats and blandishments of government, has performed well. It has exposed public graft, demanded that pubhc business be transacted in the open, fought extravagance and waste in government, laid bare land frauds, and insisted on justice through the courts. 10° Gerald S. Maltz said: Obscenity censorship has never been justified and this exemplifies the rule of taboo and not the rule of reason. Social inutility is not a reason but an excuse. The accusation that obscenity causes crime or corrupts is unfounded All expression is potentially influential, including the hate literature and the war glorification that we do not censor. To censor repression that we fear might be persuasive is to censor all unorthodox expression. The best regulation is self-regulation. The applause or rejection of the audience will always be the ultimate censor, no matter what the state of the law. The choice is admittedly difficult but unavoidably personal and it is high time that we stop imprisoning men for selling books, and lift the distasteful task of the censor from the Court, and from government and make our own decisions as to what we are to read, to see, and to think.I01 J. W Mauker, president of the University of Northern Iowa, was awarded the

168 / The Decade of the 1960s Alexander Meiklejohn Award of the American Association of University Professors and the John R. Emens Award for Support of the Student Press. President Mauker said: It is not enough to tolerate provocative ideas—the university is obligated actively to encourage the free exchange of ideas. To this end we have defined a policy for the university newspaper which provides a "free and open forum: through which its letters-to-the-editor section—the only prohibitions being against libel, obscenity or extreme vulgarity. It is essential in my judgment that the forum be kept open."102 The University of Minnesota Regents considered student files to be public records that could be examined without requiring approval by the students. William B. Monroe, newscaster, said, "The notion that a medium that covers church services, the Senate Foreign Relations Committee, and the United Nations cannot cover courtrooms quietly and unobtrusively, without affecting to the proceedings, is absurd almost on its face." l03 Congress passed and President Johnson signed legislation to create a national commission on obscenity and pornography. The commission was charged with the task of analyzing existing laws pertaining to obscenity and pornography, studying the effect of pornography on the public and particularly on minors, and to recommend legislation or administrative action.104 A. H Raskin said, "The real long-range menace to America's daily newspapers in my judgment lies in the unshatterable smugness of their publishers and editors, myself included."105 The first two-satellite, two-way transmission of news pictures linking Europe, North America, and the far Pacific was successfully achieved by Lani Bird II and Early Bird. Details of 53 separate episodes of government censorship of Stars and Stripes, the military newspaper, were published in the Congressional Record.107 * The Underground Press Syndicate was founded, even though there were only six so-called underground publications of any significant stature.I08 The United States Justice Department Community Relations Service gathered news executives and local officials in more than a dozen cities and tried to get them to agree to a series of guidelines for covering civil disorders. The plan included: waiting 30 minutes before reporting anything about a disorder, clearing information through the police, and holding the news until the uprising was under control. This effort failed.

1960 Through 1969 / 169 Frank H. Wardlow said that removing books from libraries is an insult to our young people and an offense against America.109 Ruth Warneke said: I am making a case for absolute intellectual freedom for seminarians. Unless it is granted, I think the world will be a poor place, lacking the quality of leadership these men should give. It seems to me that curtailment of intellectualfreedomon the grounds that such a procedure will keep people morally upright, politically pure and socially adjusted is fallacious. The morally upright man is not the man who has never encountered evil. He is the man who has seen evil, often in all its seductiveness and has chosen not to repeat it. li0 Eugene H Wirges, editor of The Weekly Democrat in Morrilton, Ark., was freed of all charges by the Arkansas Supreme Court which dismissed a three-year perjury sentence because he had been convicted of conspiracy, lost libel cases, lost his job, became bankrupt, jailed, victimized by arson, his home and office damaged, shot at, and beaten up by a county official. U1 1968 The House of Delegates of the American Bar Association voted to adopt recommendations by a committee to tighten the Code of Ethics in restraining publicity in criminal cases. U2 Maria Cohen said, "Reporter guarantees of confidentiality have existed since 1896. To date, 15 states have passed such statutes. Recent court cases have stimulated reporter privilege proposals across the United States. Those proposals usually have incorporated exceptions to the absolute guarantees of the older statutes." 113 Thomas F. Coon said, "Guidelines of responsibility might be devised —but integrity and decency of pubhshers, with a free flow of news, is certainly preferable to star chamber proceedings which could result from restrictions upon the press." 114 The Defense Department dropped a system it had adopted during the Cuban crisis of 1962 which required Pentagon officials to report every conversation with journalists. Thomas P. Demeter said: The doctrine of fair use must be expanded to allow the parodist substantial freedom to use the elements of the original work necessary to conjure up the object of the satire. While the property right of the author as composer must be protected, the courts should recognize that parody and burlesque are valid art forms, and as much are also deserving of protection.115

170 / The Decade of the 1960s Thomas I. Emerson said: ...general and contemporary theory of the First Amendment rests on the conclusions that the essence of a system of free expression lies in the distinction between expression and action and in the conclusion that a modern democratic society demands a deliberate and affirmative and aggressive effort be made to support the system of free expression. n 6 Wes Gallagher of the Associated Press said, "The newspaperman has never had a halo. Every emotional news era in our history has brought out distrust and criticism of the press. Attacks on the news media will rise in direct proportion to the intensity of public frustration in meeting the problems of the day." ll7 Kyle Haselden said, "Control and censorship of knowledge, ideas, and feelings—though required under certain circumstances—must be viewed generally as hostile to that human freedom that is indispensable to authentic morality." 118 The Motion Picture Association of America set up a motion picture classification system of General, Mature, Restricted, and X categories.119 Morning newspapers of March 1 displayed stories on the report of the National Advisory Commission on Civil Disorders. The blue-ribbon panel appointed by President Lyndon Johnson after 1976's rioting in Newark and Detroit released a summary of itsfindingstwo days earher than scheduled because the Washington Post notified the Commission that it was going to print the summary it had obtained through its own efforts instead of waiting until the formal release time.120 Charles Rembar, an attorney, said, "Literary censorship has its most important impact not on the publisher or the bookseller, but on the writer. If he must keep an eye on the law, we are deprived of his best creative efforts." 121 O. R. Strackbein asked that a public review board be created to consider cases of abuse of the freedom of the press. m 1969 G. N. Arharya said: All talk of freedom of the press is unreal, as newspaper ownership rights are governed by the same old musty outmoded laws, principles and modes of thought, that apply to other species of property. It can be made free only by freeing it from the power of property and profit. m In September, while in Des Moines, Iowa, Spiro Agnew gave a 30-minute speech over national television that attacked commentators and producers of television news who control the flow of information to viewers. Seven days after Agnew's telecast in Des Moines, he attacked the print media, specifically the New York Times and the Washington Post. Agnew attacked the press as being, "A small number of media men,

1960 Through 1969 / 171 not elected by anybody, who are determining the news." 124 The American Civil Liberties Union made a strong stand at its national conference in an effort to resist government interference with the press. 125 Samuel J. Archibald said, "While the Freedom of Information law is not the exclusive property of the press, it can, if properly used, be a valuable tool to dig out the facts of government." l26 Alexander Heard said, "In the United States our belief in the importance of freedom of the mind is symbolized. Inherent in the right to write and publish freely is the obligation to let others do likewise, and to read them closely." 127 Jerome Barron argued that freedom of speech and the press would prove more theoretical than real unless the government intervened. He presented this view as early as 1966. m He contended that the First Amendment should be interpreted as giving the public the right of access to the media no matter who the owners might be.129 John E. Cavanaugh said, "Indiscriminant attempts to limit disclosure of contractor information will create more problems than they solve." i3° Phyllis E. Clancy wrote: Throughout its history, the United States has placed increased pressure on the press in time of war to insure military security and to enlist the support of public opinion. The news coverage of the Vietnam war has illustrated once again the fine line between censorship of news for mihtary security and management of news for propaganda purposes. 131 James L. Collier said, "There exists in the United States today a freedom of speech in political matters which is almost absolute. American censorship is almost entirely concerned with sexual materials." 132 J. Edgar Hoover told all FBI offices to institute a detailed survey of New Left-type publications and to report names, staff members, printers, and funding sources.133 President Lyndon B. Johnson, in a speech to the National Civil Liberties Conference, said, "I am not so much concerned with the right of everyone to say anything he pleases as I am about our need as a self-governing people to hear everything relevant." The Kaleidoscope contained articles about radical politics and culture, rock music, and survival information as most of the 400 underground papers did. 134 Herb Klein of the Nixon White House staff scolded CBS for a "60 Minutes" program. Klein and J. Edgar Hoover wire-tapped Hedrick Smith, a New York Times

172 / The Decade of the 1960s reporter. President Nixon said he might give some contaminated moon rocks to journalists. The Nixon White House asked the FBI to put a wire-tap on Marvin Kalb, a television journalist. Spiro Agnew called the press an effete corps of impudent snobs. Hob Klein asked CBS for advance content of editorials about a Nixon speech. Spiro Agnew attacked "a small band of network commentators and self-appointed analysts who provided only instant analysis." President Nixon assailed the networks for their immediate analysis of his press conferences and speeches.i35 James L. McCartney said, "So long as humans maintain an interest in sex and differ about what is appropriate sexual response, we can expect that pornography will survive." 136 Four-hundred and forty-four motion pictures had been rated. 32 per cent were considered "G". 39 per cent "M", 23 per cent "R", and 6 per cent "X". The MPA's code applied only to member companies and to those independent producers and distributors who voluntarily submitted their pictures for classification.137 The National Commission on Violence reported it believed that television was contributing to violence in America. A task force report to the National Commission on the Causes and Prevention of Violence recommended that journalists should reexamine judgments about violence, write calm investigative articles, give minorities access, interact with the community, upgrade professionalism, set up codes, and provide for balanced treatment. Jack A. Nelson said: In recent years, there has been a dramatic rise in the number of underground newspapers published and the number of people who read them Factors accounting for the phenomenon of the underground may be the advent of the photo offset printing which affords an inexpensive means of publishing the tabloids and the increasing disaffection among the young with the establishment and its traditional press.138 In New Orleans, a seller of the NOLA Express was arrested for carrying an umbrella which pohce called a dangerous weapon. Other Express sellers were frequently arrested, but obtained an injunction prohibiting such arrests. NOLA Express was published in 1968 through 1973.139 Though Nixon campaigned for freedom of the press, by August 1969 administration policy was often not discussed with the press. Henry Kissinger's National Security Council was the tightest group in the Nixon administration. Though Nixon's administration did establish a communication gap, Herb Klein, communications director, denied such a gap, saying, "This is still the open administration. We make all our people as available as possible." Richard S. Salant, CBS executive, said, "It is not the proper role and function of

1960 Through 1969 / 173 a free press merely to act as a passive conduit, as cheerleader, or as an amplifier of official views or speeches of any group or individual." 14° The San Diego Free Press pubhshed a report about a corrupt businessman. At least two of the underground newspaper's street sellers were arrested each week thereafter on loitering charges which were subsequently dismissed by the courts. The San Diego Free Press was published in 1968 and 1969. ,4! Howard Godfrey led his Secret Army Organization on a raid of the San Diego Free Press and Street Journal offices to take business and subscription records and to destroy equipment. Pohce did not investigate the incident. The windows of the San Diego Free Press and Street Journal were shot out but police ignored the incident. Pohce searched the offices twice without search warrants; when the office doors were smashed and 250 copies of the paper stolen, the pohce did nothing. The paper was evicted by a landlord who had been threatened by phone calls. A new landlord evicted the San Diego Free Press and Street Journal after he had a murder charge dropped. CBS refused to telecast Pete Seeger singing his anti-war song, "Big Muddy." 142 Richard Szilagyi contended that the courts were so zealous in protecting freedom of the press that they overlooked the need to protect the individual's right against carte blanche defamation.143 There was a decrease of 41 percent of television stations carrying political editorials and a 42 percent decline for AM radio stations in the 1968 campaigns because of the chilling effect the 1967 equal access rules had upon broadcast media. In 1964, seventeen television stations used political editorials but only ten did so in 1968. There were 140 radio stations using political editorials in 1964 but only 80 did in 1968. The Warren Commission criticized Dallas police severely in their handling of the Kennedy assassination, and not the press.

Chapter 13

THE DECADE OF THE 1970s 1970 THROUGH 1979 General Events and Perspectives 1970— Eleanor Holmes Norton said in the New York Post that the only way to make sure people you agree with can speak is to support the rights of people you don't agree with. l 1971— Gen. Van Deman, retired intelligence chief officer, claimed he had a picture file withfrontand side views of "every known communist." The IRS kept an index of political activists for special investigations of their tax returns. 1977 — A Chicago school of theorists believed that the rise of mass democratic politics was made possible by communications media that intricately linked local communities to larger society. 1978 — Aryeh Neier, civil rights advocate, said that once the freedom of one group is abridged, that infringement will be cited to deny the rights of others. 2 Freedom of Expression 1970 Spiro T. Agnew aimed an attack at what he called "the columns and editorials of the liberal news media of this country —those really illiberal, self-appointed guardians of our destiny who would like to run the country without ever submitting to the elective process as we in public office must do." He criticized television for overplaying controversy and presenting contrived action.3 Alex P. Main, librarian, said:

1970 Through 1979 / 175 It should be clear to all governing bodies of all public libraries, including those commissioned to govern the state libraries, that censorship is abhorrent in a free society. In the face of such negative evidence the only plausible explanation for any attempt to impose restrictions on reading is the desire of the would-be censors to impose their own religious morality upon others. Every adult has the right to read any printed matter and that any attempts to deny his doing so have been banned by the Supreme Court. Parents are the only persons who should properly say what their children can or cannot read. 4 The Army General Counsel emphasized a policy of the Executive Branch of the government which said that all files, records, and information in the possession of the Executive Branch were privileged and not releasable to any part of the Legislative Branch of the Government without specific direction of the President. William B. Arthur, magazine editor, said: American journalism is the target of a uniquely broad and unrelenting attack. Some among us regard it as the bitterest in history. In the Administration's war on truth Spiro Agnew is simply the chosen front man. His voice is the chosen voice. Our danger, clearly, is not merely to ourfreedom,not merely to the freedom of the press. The danger is to the freedom of the people, the freedom of this society.5 Martha Boaz, librarian, said: The student has arightto read; he has a right to free access to books. He has a right to a wide variety and to an extensive selection of materials. He has a right to examine all ideas, to explore all forms of learning, to investigate all cultures. He has a rigfrt to investigate every medium of art and every model of expression of it. He has a right to search for truth wherever it may be found.6 Herbert Brucker, economist, said, "Editors should be left on a long leash free to examine each interest and issue before determining which side to take." 7 William F. Buckley, conservative writer and editor, said that the opinion-making community misunderstands the usefulness of repression. During the 1970s computers were adapted to phototypesetting. The combination of offset printing, phototypesetting, and computers revolutionized newspaper operation. Editorial persons gained production control and the journeyman printer began to disappear. Congress became concerned with the alleged staging of news by the media, especially after hearings on the involvement of CBS News in a purported invasion of Haiti.

176 / The Decade of the 1970s The Department of Justice interceded before the Federal Communications Commission set a precedent to break up cross ownership of the Gannett Company and a Rockford, 111., television station. Thomas I. Emerson, First Amendment scholar, suggested a broadcast regulatory plan to promote the system of freedom of expression through encouraging wider participation by those who wish to communicate and greater diversity by those who wish to hear as affirmative concepts of the First Amendment.8 Guy Farrell, book publisher, said, "Changing standards of obscenity and the threats caused by ambiguous new censorship laws are creating growing concern and legal problems for printers and publishers. Shifting trends are beginning to flash danger signals of increased liability within aframeworkof bewildering laws." 9 The FBI thought spraying newspapers with foul-smelling Skatole could ruin thousands of copies in seconds. The FCC hedged on how much latitude radio stations could have in programming by not condoning obscenity broadcasting. The words fuck and shit were used frequently in a 50-minute interview; that was too much for the FCC. The matter never went into the courts. The Federal Communications Commission declined to apply the cigarette advertising fairness rule to other commercial messages. The FCC ruled that spokesmen or groups representing major party candidates could have equal broadcast time, although it need not be free. Roger B. Fransecky, English teacher, said, "The freedom to read is a freedom that is shared by all—by teacher and pupil—and it can never be a right we label Tor Adults Only.'"10 D. W Gotshalk, writer, said: Censorship in the old-fashioned sense—the imposition on art and education of the moral proclivities of an external agency—seems unnecessary when the artist and the educator know their business. The artist who roams the off-color area must incise a vision of its features that is an honest portrayal of its stature, and the educator must communicate this achievement. n Dan Hicks, editor of The Monroe County Democrat in Madisonville, Kentucky, was assaulted, shot at, threatened, robbed, and burned out for his investigative reporting. n Robot Hodiene, journalist, said, "The mihtary's ban on giving out the news limits

1970 Through 1979 / 177 a soldier's view of his own war to htde more than what he can see down the sights of his rifle."13 A Jackson, Miss., underground newspaper called the Kudzu received harassment from Jackson pohce and the FBI. Searches of homes and newspaper offices lead to arrests and subsequent releases with no charges being filed. Street vendors of Kaleidoscope, an underground publication, in Madison, Wisconsin, were repeatedly arrested for selling obscenity to minors. The publisher was arrested for obscenity and for refusing to reveal sources. The offices of the paper and the car of an editor were fire-bombed.14 Judith F. Krug, American Library Association official, said: The main goal of every librarian is to provide a balanced and useful collection for his hbrary. Through this resulting collection the principles of intellectual freedom will, or should be reflected. Once an institution takes a side—ceases to be neutral—intellectual freedom is destroyed. Our job as librarians is to make all points of view concerning all questions and issues of our times easily accessible to all people.15 Army Specialist Robert Laurence, serving in Vietnam, broke off from his usual voice-over commentary of film clips to charge that he and other enlisted men who worked for American Forces in Vietnam were not free to tell the truth. The Legion of Justice destroyed the Guild Bookstore in Chicago. The Legion worked with and was supported by such agencies as the Chicago Police Red Squad, the CIA, and the Army's 113th MI Team. Military intelligence officers posed as reporters in the Saigon Press Corps, and police posed as reporters or photographers in Detroit and Washington, D.C. The only state movie censorship board still in operation was in Maryland. The motion picture classification code was changed to G for audiences including children, PG for audience wherein parents should exercise parental guidance as to whether children should attend, R for restricted to adults or children accompanied by adults, or X for adults only.16 The New York Times reported that over half of those questioned in a poll would not give everyone the right to criticize the government if the criticism were thought to be damaging to the national interest, and 55 percent added that newspapers, radio, and television should not be permitted to report stories considered by the government to be harmful to the national interest. Congress passed the Newspaper Preservation Act which exempted 44 newspaper

178 / The Decade of the 1970s combinations from anti-trust laws so they could continue joint operations.17 President Nixon created an Interagency Committee on Intelligence with the program of electronic surveillance, break-ins, and infiltration of anti-war groups and publications.18 The Report of the Commission on Obscenity and Pornography said that evidence indicated no damage to society occurred from such matter; indeed society benefited from it. The Hill-Link minority report disagreed. The Senate voted 60 to 5 to reject the Commission report. At least 150 bills seeking to toughen obscenity controls were introduced in Congress.19 The public library system of Miami had 159 copies of Portnoy s Complaint for its readers who were on long waiting lists. James B. Pressry, Jr., attorney, said, "While the Supreme Court has not abolished censorship theoretically, the practical effect of decisions has rendered the censor virtually powerless." w The Reporters Committee for Freedom of the Press was formed at Georgetown University in response to a threat posed by the Justice Department's subpoena policies. It maintains a legal defense and research fund, and publishes newsletters and other materials. William F. Schanen, Jr., of The Ozaukee Press in Port Washington, Wise., printed dozens of underground newspapers, because other printers refused to do so under pressure of local persons, police, and even the FBI. Senator Margaret Chase Smith said that the key to security is public information. Television and newspapers were subpoenaed for materials about the Black Panthers and the SDS Weatherman. They cooperated fully with grand juries until they realized the process was a threat to freedom of the press.21 The Underground Press Syndicate served 400 newspapers with syndicated materials.22 The United States Passport office maintained a "look out file" which could be shared by other government agencies. 1971 The Advertising Review Council was established. Birth control advocate William R. Baird was arrested after giving a lecture in Suffolk County, Long Island. The lecture included the explanation of certain birth

1970 Through 1979 / 179 control devices. Baird was charged with corrupting the morals of a 14-month old baby attending the lecture with its mother. The Columbia Broadcasting System was attacked by the United States government for its showing of the "Selling of the Pentagon." The film was originally shown in the spring of 1971, and the government contended that certain parts of the program were out of context and therefore gave false ideas to the viewer. M Walter Cronkite of television said, "The difference between publishing and broadcasting is mostly myth."24 Thomas I. Emerson, First Amendment scholar, said, "The basic theory underlying the legal framework [of free press] has remained substantially unchanged since its development in the seventeenth and eighteenth centuries." u The Fairness rule was not found applicable for army recruiting materials, or for Chevron product claims of reducing pollution, but found ads supporting the Alaskan pipeline were discussion of only one side of a controversial issue of public importance.26 The FBI denied that it had used wiretaps on journalists or government officials. The Federal Communications Commission adopted the "prime time access rule"—a move aimed at drastically curtailing the role of the three major networks in controlling television programming. The Federal Election Campaign Act of 1971 required that broadcasters allow reasonable time for a legally qualified candidate for federal office, and required the station to charge its lowest time fees for such broadcasts. Reuven Frank, television executive, said that concentrated ownership of the media was less a danger to freedom of the press than leaving to a few government officials the power to decide what can be discussed and what cannot. The role of the press is to inform society about problems, not to solve them.27 Julian Goodman, NBC president, said: Government operates by a set of hand signals. Nobody sends a memo saying do this or that; but the tone set by those at the top has a decided effect upon the actions of those below. When Agnew makes speeches, people down the line take it as a signal. When a tone is set by public statements or actions by Administration officials, it is regarded as policy. M J. Edgar Hoover said NBC broadcasts about the FBI were venomous and malicious and the liberal communications media had certainly tried to represent the FBI for some time as an American Gestapo.

180 / The Decade of the 1970s The IRS kept an index of political activists for special investigations of their tax returns. David G. Jennings, attorney, said, "The public's right to be informed as well as the rights of those such as dissident groups to communicate their views anonymously requires constitutional recognition and implementation of a newsman's privilege of confidentiality." * Horace M. Kallen, writer, said, "Neither obscenity nor libel can be said in any sense to present a clear and present danger of anything, yet tiiere remains a strong momentum for subjecting them both to some degree of control."30 Elmer W Lower, educator, said, "In 38 years as a professional journalist, I have never encountered such a wave of criticism of mass media as we have today."31 David A. Marcello said, "A First Amendment freedom for the press to resist disclosure of confidential sources is presently emerging as the most recent development of our evolving system of constitutional protection."32 A Minnesota Press Council was established as a watch-dog ombudsman agency.33 Women's liberation advocates announced the first edition of Ms., a magazine for the female, married or single. The women felt there were too many "men's" magazines on the market and wished to have their own representation. Articles on such things as how to raise children without sex roles were included in the new publication. The New York Times was temporarily restrained from publishing The Pentagon Papers. 34 Disappearance of a national standard for obscenity made federal prosecution confused after cases were brought under community standards in various jurisdictions. The Pentagon hired afirmto evaluate District of Columbia media reports to keep abreast of what was being said about them. Morris Peterson, journalist, argued that while the editor has the right to determine the content of the paper, the public has the right to demand complete and accurate details plus the full disclosure of the sources supplying those facts and the opinions related to these facts.35 Congressman Adam Clayton Powell said, "Never let anyone keep you contained, and never let anyone keep your voice silent." * Pressfreedomto report the Vietnam War was almost complete despite efforts to muffle reports critical of military operations.37

1970 Through 1979 / 181 Profile Bread benefitted by the advertising the FTC ordered as correcting of false claims the company had made in earher advertising in the ITT Continental Baking Co. Case. Bread sales increased. Public Broadcasting Services (PBS) was established. Charles H. Sandage, journalist, said that mass media should be considered as common carriers and adhere to the principles that apply to other transportation agencies. M Scanlan s Monthly editors decided to print excerpts of extreme right and left propaganda, but the printer refused to print the magazine.39 Erich Segal, writer, said: Obscenity is a poor excuse for art, a kind of book juggling to hide artistic bankruptcy. Shakespeare, fortunately, was neither curious nor yellow, because Shakespeare had the courage, and it takes courage, to attempt to say the ineffable instead of showing the indelicate. Far more glorious than the human groin, and far more interesting, is the human heart Legalizedfreedom,rather than censorship, is the greatest blow to pornography. ^ Lloyd Shearer, journalist, said, "What it boils down to is that the government's present secrecy classification system is an undeniable mess riddled with inequity, stupidity, and inconsistency."41 Edward F. Sherman, attorney, said, "A distinctively mihtary philosophy of the First Amendment still prevails in military courts which has severely limited the availability of judicial protection for servicemen's free speech rights."42 The vice president and the executive editor of the Washington Post and the Times Herald, in discussingfreedomof the press, concluded that the freedom really belongs to the people. The White House asked the FBI to investigate Daniel Schorr, a television journalist; the FBI complied.43 1972 Spiro Agnew attacked television networks for lack of objectivity in reporting the news about the Nixon Administration. The media called the attack demagoguery and a censorship threat. Agnew attacked the New York Times and the Washington Post with scathing criticism. u The American Society of Newspaper Editors stated that the heart of the problem is that any subpoenas of a newsman tend to try up news sources.45

182 / The Decade of the 1970s David K. Berning-Hausen, librarian, said, "It is not the purpose of the American Library Association to take positions as to how men must resolve the vital issues facing mankind today. Vital though they are, it is essential that librarians, in their professional activities, shall view such issues as subordinate to the principles of intellectual freedom." * Pat Buchanan, a speech writer for President Nixon, threatened to launch anti-trust legal action against the networks if they continued to freeze out Nixon's opposing viewpoints.47 Jane Clapp, artist, said, "Art Censorship brings together from scattered sources a record of suppression, restriction and restraint of visual communications in the plastic arts—painting, sculpture, graphic arts, architecture—and decorative arts." 48 Greg Cornell, socialist, contended that the only real freedom of the press is the freedom to distort, twist, and suppress information for profit making. "It is only when we have a mass circulation, socialist press of the workers, the Blacks, the Chicanos, women, and students that we will have a press that can tell the truth and be heard."49 Senator Sam Ervin said that the government cannot be trusted to honor the commandments of the First Amendment. M The FBI took the manuscript of The Politics of Heroin in Southeast Asia by Alfred Cook from the publisher before it could be printed, despite Cook's protests. The Great Speckled Bird, an underground publication in Atlanta, was seized by the U.S. Postal Service for printing abortion referral service information. This was identical to advertising which had appeared in the New York Times.5l James A. Harvey, librarian, said, "Thinking that children are naive and they ought to be kept that way has resulted in an increasingly tangled web of restrictions on access to library collections for minors."52 Lawrence Learner, writer, in the Paper Revolutionaries, said, "As yet the counter culture has produced only one broad, unifying institution. It is not a political party or an organization at all, but a medium: the underground press."53 300,000 copies of the preview issue of Ms. magazine hit the newstands in January. They sold out in eight clays. The preview issue of Ms., a magazine "owned by and honest about women," was financed by the Washington Post publisher Katherine Graham and New York Magazine editor Clay Felker. The creators of Ms. hoped to support the Women's Liberation movement by producing a full-fledged national magazine, created and controlled by women, "that could be as serious, outrageous, satisfying, practical, sad, funky, intimate, global, compassionate, and full of change as women's lives really are."

1970 Through 1979 / 183 President Richard Nixon admitted that the system of classifying government documents failed to meet the standards of an open and democratic society. Nevertheless, he set up the strictest classification system yet devised.54 The report of the Twentieth Century Fund Task Force entitled "A Free and Responsible Press" said: Afreesociety cannot endure without afreepress, and the freedom of the press ultimately rests on pubhc understanding of, and trust in its work. The pubhc as well as the press has a vital interest in enhancing the credibility of the media and in protecting their freedom of expression. One barrier to credibility is the absence of any established national and independent mechanism for hearing complaints about the media and for examining issues concerning freedom of the press.55 The Standing Committee of Correspondents admitted to membership in the House and Senate press galleries a newsman who once threw a pie in the face of a member of the U.S. Commission on Pornography. The newly admitted member was given full reporting privileges on Capitol Hill as a Washington correspondent of the Underground Press Service. The White House asked for a study of how to install special FM radios so the government could turn them on automatically and be able to communicate to 100 percent of the population at any time. Clay T. Whitehead, Director of Telecommunications for Nixon, told networks they'd have license renewal problems for the television stations they owned if they failed to correct imbalance or consistent bias in newscasts and programming. * 1973 The AFL-CIO claimed that Richard M. Nixon had committed an impeachable offense by interfering with the constitutionally guaranteed freedom of the press by means of wiretaps, FBI investigations, and threats of punitive action.57 Vice-president Spiro Agnew said that the Nixon administration is no more desirous of nor capable of curtailing freedom of the press in America than any of its predecessors.58 Jack Anderson and George Clifford, columnists, wrote: Perhaps most important of all, Congress must rip aside the veil of censorship that prevents the American people from knowing what their government is doing. The United States now possesses more than twenty million documents that are hidden from pubhc security by the censor's stamp. Men familiar with this hoard insists only ten to thirty percent of the papers have any genuine bearing on national security. The rest are classified to keep Americans from learning of malfeasance,

184 / The Decade of the 1970s bungling, or simply because the censor lacked the wit to make the papers pubhc. 59 James Aronson, journalist, said, "My belief is that passage of an absolute law would be a clear statement from Congress endorsing the bedrock protections and privileges of the First Amendment for journalists in the pubhc interest." ^ Ben Bagdikian, journalism educator, said: The future ofjournalism is not in the hands of the technologists and the social scientists and the city planners. It is in the hands of the political leaders and the courts. And how the pubhc, leaders, and the courts emerge depends to a great degree on the determination of every journalist to remain free at any cost.61 The CIA intercepted 28,322,796 pieces of mail between 1953 and 1973. A 25year mail interception project of the FBI failed to find even one illegal agent. Walter Cronkite of television said, "The information that must flow freely from the government to the people, also eddies around government itself. Good newspapers and broadcasters, through their diligence, can provide information about one branch of the government to officials of another branch."62 In Prince William County, Virginia, 500 persons condemned The Dynamics of Language textbooks. The school board in St. Francis, Wisconsin, banned Ralph Ellison's Invisible Man. Senator Thomas Eagleton said, "If the Constitution prohibits Congress from making any law abridging freedom of the press, then I submit that it is also the duty to prohibit any other institution from violating that same freedom."63 Senator Sam Ervin said: A press which is not free to gather news without threat of ultimate incarceration cannot play its role meaningfully. The people as a whole must suffer. If the sources of that information are limited to official spokesmen, the people have no means of evaluating the worth of promises and assurances. The search for truth among competing ideas, which the First Amendment contemplates, would become a matter of reading official news releases. It is the responsibility of the press to insure that competing views are presented, and it is our responsibility as citizens to object to actions of the government which prevent the press from fulfilling this constitutional role. M The FBI edited a local radio reporter's teletype reports about the Wounded Knee

1970 Through 1979 / 185 story so that slanted and partial articles appeared without his knowledge. The Federal Qxnmunications Commission reaffirmed its Fairness Doctrine with these guidelines: Opposing views are not required on an individual broadcast basis, or on a formula, but over a reasonable period of time and as an aspect of overall programming. An issue is not controversial merely because of media coverage. The broadcaster must play a conscious and positive role in encouraging opposing viewpoints. There is no right of access as such. The Commission attempted to untangle the confusing fairness requirements for commercial messages, which meant that the Fairness Doctrine would not apply to product commercials but it would apply to commercials discussing issues. 65 There were 23 bands reserved for citizen's radio broadcasting in 1973. The FCC proposed a rule requiring newspapers owning television stations, or 236 newspaper-radio combines, to sell either the newspaper or the broadcasting station within five years. But the rule was not adopted. Publisher Katherine Graham said, "The press should not be considered as a fourth branch of government, but as an essential counterweight to government, the basic check against abuses of official power." * She also said, "The founding fathers gave the press the mission to inform the people and promote the free flow of facts and ideas, however untimely or challenging or disagreeable those facts and ideas may be." 67 Retired Admiral John T. Hayward said, "I believe the highest national interest would be served if all present regulations and procedures governing review by the Department of Defense of pubhcations by mihtary people be reviewed in detail and redirected to encourage free expression by military professionals." ** Carolyn Heilbrun, author, said that ideas move rapidly when their time comes. w Erica Jong, author ofFear of Flying, accused the Smithsonian Institute of trying to censor her planned lecture there. The Justice Department would not allow the press into the Wounded Knee area. Jack Landau, columnist, testifying for the Reporter's Committee for Freedom of the Press before a House subcommittee, said, "Consider what kind of nation we would be if hundreds of scandals involving state and local government still lay locked in the mouths of citizens."70 The National Council of Teachers of English in its resolution on censorship said, "To preserve the unity of Western thought and culture, American citizens who care

186 / The Decade of the 1970s about the improvement of education are urged to join teachers, librarians, administrators, boards of trustees, and professional and scholarly organizations in supporting the students' right to read."71 The National News Council, a private ombudsman-type organization, began its operation. n President Nixon condemned making heroes out of persons who stole secrets and then published them in newspapers. In hisfirstmajor speech about Watergate, he said: It was the system that brought the facts to light and that will bring those guilty to justice—a system that in this case included a determined grand jury, honest prosecutors, a courageous judge, and a vigorous free press. Later in the White House press room, he said to the joumahsts, "We've had our differences in the past, and just continue to give me hell when you think I'm wrong. I hope I'm worthy of your trust."73 Government threats to freedom of the press during Nixon's administration included: Spiro Agnew's speeches, Clay Whitehead's schemes to politicize broadcasting, Congressional investigations of the "Selling of the Pentagon," White House efforts to censor a Watergate documentary, attacks on individual reporters, challenging licenses of television stations, failure of both media owners and the public to support journalists, Attorney-general Mitchell's guidelines to subpoena newsmen, the Supreme Court's ruling against a reporter's privilege in testimony, and threats to public television. Buried in the Nixon proposed federal crime statute was a provision to deal with disseminating obscene materials, which would have set up federal repression of the film and publishing businesses. Ricky D. Pullen, journalism educator, reported: The idea that the press is in any way responsible to the government or society is in direct contrast to the libertarian idea incorporated in the First Amendment that government and society should have no control or power to manipulate the press.74 John C. Quinn, deputy chairman of the Freedom Forum, said, "Attempts to restrict press freedom are becoming, for some, a national sport, but the real battle begins at home—on the local beat with aggressive reporting, progressive editing and united defending of the First Amendment."75 Historian Arthur M. Schlesinger said, "If the Nixon administration has its way, criticism of the government will become far more difficult."76

1970 Through 1979 / 187 Daniel Schorr, broadcast newsman, said: I am now left to ponder, when a producer rejects a controversial story I have offered, whether it is because of the normal winnowing process or because of my trouble-making potential. Even more, I am left to wonder, when I discard a line of investigation, whether I am applying professional criteria or whether I am subconsciously affected by a reluctance to embroil my superiors in new troubles with the Nixon administration.77 The Society of Professional Journalists adopted a code of ethics saying that freedom of the press must be guarded as an inalienable right of the people.78 Gloria Steinem, writer and activist, said, "The long history of anti-obscenity laws makes it very clear that such laws are most often invoked against political and lifestyle dissidents."79 The school board in Drake, North Dakota, had Kurt Vonnegut's Slaughterhouse Five, James Dickey's Deliverance, and the anthology Short Story Masterpieces burned. 1974 Floyd Abrams, First Amendment attorney, said: With respect to press coverage of the courts, it seems to me that the press and the entire publishing industry must be unremitting in telling the courts that the press alone decides what is fit to print. *° The Associated Press introduced laser facsimile transmission for news pictures and photos. Ben Bagdikian, First Amendment scholar, said: The country has passed through more than a decade of radical change, in race relations, in the assassinations of three national leaders, in a disastrous war, in lifestyles, in international strategy, all of it inevitably creating turbulence and confusion under the best of conditions. All of it was transmitted to the public by the news media. The news was real. The events would have occurred without the media. But they have made the media, the bearer of bad and disturbing news, a perfect scapegoat. The most powerful leaders of the country have done precisely this, turning public confusion and uneasiness about events against the press.81 Claude Brown, author of Manchild in the Promised Land said: It's a cruel thing to tell people not to read. It's not only a violation of people's constitutional rights; it's cruel. It's a waste of time telling students what not to read. They're going to get access to it anyway. w

188 / The Decade of the 1970s William C. Canby, Jr., attorney, said: The editorial function in public television may not receive exactly the same protection as in the case of the state university press. But there is good reason to protect thefreedomof editors of public broadcasting programsfromsporadic interventionfromabove or outside, particularly when the intervention is political motivation. w David S. Cohen, attorney, said, "A viable democracy cannot permit an official or government agency whose self-interest is at the stake to make decisions regarding freedom of access to information." M Helen K. Copley, journalist, said, "In its purest form,freedomof the press exists when the printing press is neither subservient nor responsive to the will of the state."85 Paul B. COTS, librarian, said, "If the institution is firmly committed tofreedomof inquiry in all areas of knowledge, and this commitment has been made a formal policy by the governing body, the hbrary is unlikely to come under attack by would-be censors, and should be able to defend itself successfully if an attack does come." M Richard Criley, writer, contended the Criminal Code Reform Act proposed by the Nixon Administration included provisions for press censorship. ** Richard L. Darling, English teacher, said, "Censorship is pecularily a new story as it relates to children's books." w Dwight Deay, attorney, contended that newspapers could publish deliberate falsehoods and recklessly disregard the truth in at least seven ways and that, except for gossip mongering and invasion of a person's sex life, a reporter'srightto report news of public interest is almost unlimited. " Eleanor L. Dempster, librarian, said, "Freedom of access to information, by definition, denies censorship of any sort." * Periodicals which have been censored included Mad Magazine, Harper's, Life, Read Magazine, National Geographic, National Observer, Scholastic Magazine, Time, Newsweeksnd Glamour. The New York Times was also censored as were such films as Birth ofa Nation, OfBlack America, and Portland Express. Recordings have been censored including those by Bob Dylan, the Beades, Rod McKuen, and Bill Cosby. George E. Reedy, journalism educator, contended the American press arouses such heated controversy because of its high quality and because it is not dominated by consistent ideological viewpoints.91 Right-wing pohtical groups and some fundamental religious organizations sought

1970 Through 1979 / 189 widespread book censorship in a national Battie of the Books. These and other groups were able to achieve censorship actions in various cities and states to censor at least 67 books, many of which were considered great literary classics. Editor Vermont Royster said: Among the many revolutionary ideas to emerge from the American Revolution, none proved more revolutionary than freedom of the press. None has proved more durable, for it has withstood two centuries of assault. Freedom of the press, once proclaimed, admits to no logical limit.92 In state legislatures, at least 350 bills were submitted to control motion picture obscenity. Movie industry censors changed, or tried to, scenes in these movies: Battleground, The Outlaw, From Here to Eternity, Gone with the Wind, A Street Car Named Desire, Spartacus, The Caine Mutiny, Francis Goes to West Point, The Defiant Ones, The Longest Day, Deep Throat, Carnal Knowledge, and The Lottery. Harry Snyder, who was blind, was a member of the movie censorship board in Clarkstown, New York. He relied on his feelings rather than his sight to discover pornography. Some church members burned Playboy and The Exorcist in Junction City, Kansas. Michael M. Sasser, attorney, said: The question of a journalistic privilege necessitates the balancing of two competing interests—enhancing the administration of justice through compulsory testimony of all citizens versus promoting the free flow of news, and hence the people's right to know. To be sure, both interests are basic to American philosophy.93 P. M. Schenkkan, attorney, said: The belief that the power of the broadcast media presents a clear and present danger of oligarchy in the market place of ideas and that this constitutes a substantial evil that Congress had a right to prevent by content regulations is suspect. The most suspect consequence of this belief is that the Fairness Doctrine is applied to television. On examination neither the power rationale nor its fairness doctrine corollary can withstand First Amendment scrutiny.94 A Security Assistance Symposium proposed using the media to convince people that a number of harsh control measures were for their own good. Martin L. Seiden, writer, said, "There is a clear link between the media's mode

190 / The Decade of the 1970s of operation and the fact that no one in mass communications in the United States is a government employee." M A teacher was arrested in South Carolina for recommending Slaughterhouse Five to minors. Some parents couldn't stand the curse words in John Steinbeck's Of Mice and Men. Bessie Stagg, editor of the Baronville, 111., News, quit after seventeen years of harassment, boycotts, bomb threats, and threats to kidnap her children. % Television programs receiving severe criticism were Kojak, Soap, Maude and Welcome Back, Kotter. In Battle Creek, Mich., a fundamentalist group burned eleven television sets worth $1,400. 1975 Jane Allen and Derek Guthrie, art commentators, said, "A number of recent incidents across the country vividly demonstrate that artists still have to fight for the right to show their work without fear of censorship." ^ Edmund R. Arnold, journalism graphics educator, said: Intellectualfreedomis difficult to five with because it requires tolerance of ideas sometimes diametrically opposed to our own and contrary to that which we hold dear, true, and beautiful. But democracy derives its strengthfromthe diversity of its people. Censorship is the antithesis of intellectual freedom; it is the attempt to limit thought to certain acceptable channels." Ben Bagdikian, journalism educator, said that a voluntary press council would be the best guarantee against government suppression. " Baltimore police maintained files on 125 political organizations. Alexander Bickel, a constitutional scholar, said, "The value of free speech is that the country may better be able to adopt the course of action that conforms to the wishes of the greatest number, whether or not it is wise or founded in truth." 10° The broadcast access rule for pohtical candidates was declared not to apply to debates or press conferences because they were not controlled by the candidates. Susan Brownmiller, a writer and activist, said that pornography is the undiluted essence of anti-female propaganda.101

1970 Through 1979 / 191 Citizens band radios had 40 bands available with a promise of as many as 100 being possible. John Crawley, writer, said, "The case against censorship rests absolutely on the right of the editor to have the last word. The ultimate reasons for making a fuss about a free press is the right of the pubhc to know, but this cannot be served without a general acceptance of the independence of the editor under the law." 102 Anthony Day, writer, said, "Just as an absolute interpretation of the First Amendment is the only sure defense against the courts, so an absolute interpretation of the First Amendment in cases like the Pentagon Papers is the only sure defense for the press against the government." l03 Senator William J. Fullbright said the inquisitorial style of the press tended to be vindicative and less concerned with uncovering and correcting mistakes in public affairs than in embarrassing and punishing those who make them. The media have acquired an unwholesome fascination with the singer to the neglect of the song. There is no one to restrain the press except the press itself—*ior should there be. I04 Thomas E. Gish, journalist, suffered boycotts, threats of violence, social isolation, and arson for being the crusading editor of The Mountain Eagle in Whitesburg, Kentucky.105 James C. Goodale, attorney, said: If the courts recognize the right to know, however, they will begin to perform the function of gathering information. They will also act as editors. Editing will require judgments about what information to release to the pubhc and what to withhold. The right to communicate will thus be affected, since one cannot communicate what has been withheld. I06 W. H. Hornby, journalist, said, "When the press isn't told who is in jail, the protection of individual privacy has gone too far." l07 J. Edgar Hoover, director of the FBI, said, "We must be willing to surrender a small measure of our liberties to preserve the great bulk of them." The House Committee on Un-American Activities was condemned by the press but continued until 1975, under the name of the Internal Security Agency. Donald Kagan, a history professor, said, "Freedom of speech is vital, but it is not free; it has a high price. It compels us to go against our natures, to hear unpleasant and even hateful things, to tolerate unpleasant and even hateful people." ,08 Ruth M. McGaffey, English teacher, said, "Those ideas we hate must be

192 / The Decade of the 1970s constitutionally protected if the market place of ideas is to survive for those ideas we love." 109 Eli M. Oberler, writer, said: Censorship—any censorship—cannot be justified in a democracy if we really believe in man'sfreedomto choose for himself, in man's Godgiven right to motivation by his own conscience, and finally in the ability of man to learn only when he is given an opportunity to learn by receiving all knowledge spread out before him. uo W. B. Pearce and Dwight L. Teeter, journalism educators, contended that the mess in obscenity regulation stemmed from a misreading of history and from a reluctance to employ thefindingsof behavioral science. n l Author Mary Renault said: Tell a man what he may not sing, and he is still halffree—evenall free, if he never wanted to sing it But tell him what he must sing, take up his time with it so that his true voice cannot sound even in secret—there, I have seen, is slavery. m Peter Schrog, writer, criticized the National Association of Broadcasters' regulation that programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network prime time and in the immediately preceding hour. "Complaints about sex and violence on television share the assumption that television is a major influence on behavior, an assumption still under debate." i13 A statement of principles was adopted by the American Society of Newspaper Editors strongly defendingfreedomof the press as arightof the people. The National Council of Editorial Writers adopted a similar basic statement of principles. The Student Press Law Center was established in Washington, D.C., as an outgrowth of the project producing Captive Voices and with the encouragement of the Reporters' Committee for Freedom of the Press.1!4 J. F. Terhorst, writer, said, "The press is constitutionally required to live in a kind of no man's land, subject to constant criticism of both government and public and loved by neither."115 James M. Wall, writer, said, "Censorship is a presumptuous heresy, for it assumes that one cannot know with finality what is true." 116 The Wall Street Journal used satellite transmission of full pages to regional printing centers. (USA Today used similar satelhte transmissions when founded in 1982 and the Associated Press used satellite delivery of news reports to its members

1970 Through 1979 / 193 in 1981 and soon thereafter used satellite delivery of pictures.) U7 1976 Editor Kenneth J. Botty said, "An unshackled press, free to probe, to pursue, to ask, to check, to wonder and to report, scatters the seed of truth in the field of human experience. Freedom is the crop." 118 Judith W Brown, an editor and publisher, said that by printing the bad news, we protect the right to print the good news. 119 The Buckley Amendment was not intended to punish or restrict publication by newspapers. It restricts public college and school agencies from releasing personal educational records without the permission or knowledge of the students. A revision of the copyright law relaxed controls somewhat in light of contemporary technology and practices, particularly if the uses do not involve financial benefits to the user.120 George Fattman, an editor, said that if the truth be known by those who seek it, there must be a free flow of ideas and ready access to facts. m The Government in the Sunshine Act was passed. It required 50 federal agencies to conduct their activities in meetings open to the public. WiUiam Hamling and Earl Kemp, writers, were convicted and jailed for obscenity for publishing The Illustrated Presidential Report of the Commission on Obscenity and Pornography Viewpoints. I22 Judith F. Krug, American Library Association official, said, "The library is still the one and only place where the dictates of the First Amendment can be fulfilled and where society may eventually express its confidence in itself." 123 Jerry W. Friedheim, general manager of the American Newspaper Publishers Association, said, "A strong,freecountry and a strong, free press are inseparable." 124 The New York University Law Review said, "Most important, by constricting cable content, the FCC is imposing prior restraints that stifle free speech. Government has very narrow authority to restrict the content of a newspaper. It should have no greater authority to restrict the content of cable television." 125 Pamela E. Procuniar, librarian, said: To give democracy a chance of success, we need to develop adults who are capable of choice and decision-making. The more we protect and shelter our children, the less they will be able to participate meaningfully in the democratic process. We must decide to risk

194 / The Decade of the 1970s exposing our children to knowledge of mankind's ideas and history, its mistakes and successes.126 The Restatement (Second) of Torts—652 (1976)—recognizes four privacy interests: intrusion, appropriation, unreasonable publicity or disclosure, and false light publicity. Benno S. Schmidt, Jr., educator, said, "The Supreme Court's unanimous decision on June 30 to strike down prior restraint of the press in the Nebraska Press Association v. Stuart is the most imposing constitutional victory for freedom of the press since the Pentagon Papers case decided five years earlier to the day." 127 Roberta Whited, journalist, said: The leaking of classified information has been an increasing trend in the United States since the classification system was established. Although many public officials are outraged at the leaks, and express concern over national security, it seems apparent that many governmental abuses of power would have gone undetected without the unofficial disclosures.128 1977 The Associated Press developed a computer system of photo darkroom production. The march througji Harlem by the KKK, or through Skokie by the Nazis, isn't the exercise of the right of assembly, but an obscene phone call acting as an imposter under the umbrella of the First Amendment, according to William F. Buckley, Jr., editor, columnist, and talk show host.l29 A Senate report said: The question of international communication and information is of grave importance to the United States, where Department of Commerce statistics show that the information sector of the United States economy has grown to include over 40 percent of the Gross National Product (if education is included). It continues to spiral upward. Eric Severeid, television commentator, said, "I have never understood the reasoning of those critics who seem to be saying that broadcasting will enjoy full rights under the First Amendment when it is worthy of them. Constitutional rights do not have to be earned; we were all born with them." i3° Leonard R. Sussman, executive director of Freedom House, said: The free journalist does not have to display a social responsibility in order to earn his freedom. He must be responsible to the craft of journalism; the craft, at its best, is understood to demand high standards

1970 Through 1979 / 195 of truth, personal integrity, a sense of inquiry, and commitment to the commonwealth. That standard need not be spelled out in a code such as UNESCO will now try to create. Sooner or later some government is likely to insist in enforcing that code. Then even the best code becomes another noise of government, appropriate only for authoritarian societies. The primary question is not press performance; it is press freedom. Afreebut badly performing press serves its peoples far better than an efficient, government-controlled press.131 The FCC ruled that George Carlin*s monologue about dirty words should not be broadcast at times when children might be listening except on a very limited frequency. Carlin used shit, piss, fuck, cunt, cocksucker, mother fucker and tits, and variations to exhort his listeners.l32 The Protection of Children Against Sexual Exploitation Act made it illegal to use children in the production of pornographic materials. 1978 President Jimmy Carter created by executive order the National Telecommunications and Information Agency in the Department of Commerce. Its roles were directed to policy analysis and development, telecommunications applications, federal systems, and telecommunications sciences. The Federal Trade Commission recommended a ban on advertisement of sugared products aimed at children.I33 In 1971, there were more than 400 so-called underground publications in the United States. By 1978, the number had declined to 78, according to the Underground Press Syndicate. 1979 Florida Governor Rubin Askew vetoed a bill that would have established committees on each University of Florida campus to censor films and other educational resources for pornography because he beheved the University must be free to examine ideas in an atmosphere of freedom. The Federal Communications Commission confused the fairness doctrine applicability to commercial messages by ruling that a station had violated the rule in pro-nuclear energy commercials. The Federal Communications Commission dismissed a complaint about an NBC broadcast on truck safety, indicating stations did not violate the Fairness Doctrine. The Fairness Doctrine and the Equal Access for Political Candidates were mutually exclusive. A pohtical candidate could not complain under the Fairness rule, nor could non-politicians ask for access time. The International Communications Agency was formed by combining the United

196 / The Decade of the 1970s States Information Agency, the Voice of America, and the Bureau of Educational and Cultural Affairs to develop a national policy on international communications and the free flow of information. Iowa's Juvenile Justice Bill, enacted in July 1979, said records of juveniles involved in legal matters and juvenile court proceedings are confidential. Previously such records were pubhc. However, if the information in those records is obtained in other ways (for instance, from the juvenile) then the information can be published. Eighteen million transmitting-receiving hcenses had been issued by the FCC for the use of citizens band radio in the United States. Margaret Mead, anthropologist, said, "Thanks to television, for the first time the young are seeing history made before it is censored by their elders." 134 In The Memoirs of Richard Nixon, the former president said, "The media are far more powerful than the president in creating public awareness and shaping public opinion, for the simple reason that the media always have the last word." ,35 The Progressive was ordered not to publish an article about the H bomb, but the editor said, "The government had provided an opportunity to reach many more of our fellow citizens than we could ever hope to reach through the pages of this magazine. If we could not tell [Reporter] Morland's story about H bomb secrecy, we could tell the story about censorship and repression." iy6 The governmentfinallyadmitted that the First Amendment protected the right of Progressive magazine to publish "The H-Bomb Secret: How We Got It, Why We're Telling I t Walter Wriston, a banker, said, "To think that the bell does not toll for academic freedom or freedom of the press if economic freedom is shackled is a dangerous illusion." 137

Chapter 14

THE DECADE OF THE 1980s 1980 THROUGH 1989 General Events and Perspectives 1981—Jimmy Carter, in his farewell presidential address said that America did not invent humanrights;instead humanrightsinvented America.l Shortly after he took office, President Ronald Reagan authorized the CIA to engage in domestic counterintelligence in cooperation with the FBI. Dr. Hans Anderson conducted experiments leading to the electronic pagination of newspapers.2 1984—Nikki Giovanni, a writer, said, "The human spirit cannot be tamed and should not be trained."3 1985—Harry Belafonte, singer, said: To speak out against an unjust war was treasonous, to speak out against the treatment of blacks made you a communist. But if you feel in your heart that you have a responsibility to advance justice and human rights then do it.4 1988—Ray Charles, musician, said, "What is beautiful about America is the freedom."5 Oprah Winfrey, talk show host, said, "Truth, whether you perceive it or not, only brings light into your life."6 1989—Wynona Judd, country singer, said, "I am thankful for the chance to live in a place where I can express my feelings, believe in what I choose, and take part in the American dream."7

198 / The Decade of the 1980s Freedom of Expression 1980 The Associated Press and eleven newspapers began tests on computer retrieval services in home personal computers. By 1980, there were at least 5,000 cable systems serving 20 million subscribers.8 Joseph Costa, one of America's most noted photojournalists, spent several years combating an erroneous description of the role of photojournalists covering the Hauptman trial for the kidnaping and murder of the Lindbergh baby, conducted in a small New York city courtroom. Local officials created and exploited the circus atmosphere around the courthouse and in its corridors. The judge would not allow7 picture taking in the courtroom except for one newsreel camera whose sound was muffled by an enclosing box. Since the principals in the trial were not available in the courtroom for pictures, the photographers tagged the word journalists around outside the courthouse. This caused a considerable hullabaloo outside the courthouse at times, but the trial itself was decorous and dignified. Unfortunately, a person who had not been at the trial reported incorrectiy several years later that the trial had been made a shambles by loud, aggressive photographers who invaded the courtroom with shouts and noise, even jumping on tables and thrusting cameras in the faces of witnesses and others. No such thing happened; this false report was used by the American Bar Association to set up its Canon 35 which kept camerasfromAmerican courtrooms for many years. 9 E. L. Doctorow, an author and educator, said, "Whenever citizens are seen routinely as enemies of their own governments, writers are routinely seen to be the most dangerous enemies." 10 Jerry Falwell, minister, said, "The press has always been traditionally on the wrong side of most issues." " Freedom s Journal in 1827 was produced by and for Blacks and was thefirstof more than 2700 newspapers, magazines and quarterly journals that have comprised Black journalism.l2 Charles Kuralt said, "The one thing that's worse than hearing about all the violence and all that bad news on television is not being permitted to hear it." l3 The Oklahoma Attorney general ruled that, "Disciplinary hearings held by governing boards of Oklahoma state colleges and universities must be open to the pubhc. The clear statement of legislative policy is that no executive session of any kind for any reason shall be held except expressly permitted by statute."

1980 Through 1989 / 199 Pohce in Flint, Michigan, seized materials in the office of the underground Flint Voice. UPI Newstime became the world's first satellite news cable channel. 1981 Vincent Blasi, attorney, observed that in the realm of civil liberties it is not always the case that the force of public opinion aids the cause of freedom. He said: The label "prior restraint" could plausibly be applied to a variety of regulatory procedures. Consider, for example: registration requirements; withdrawals of postal privileges; film classifications systems; police surveillance practices; taxes and other cost impositions on publishing enterprises; in choate crimes; systematic threats to enforce the criminal law; probation conditions; allocation judgments regarding pubhc resources such as parade routes, meeting rooms, or even lecture fees; administrative cease and desist orders; loyalty oaths and job disqualifications based on past or present beliefs; insurance requirements far demonstrators; restrictions on the use of certain equipment by media organizations; book seizures; arrest and bail; procedures relating to prosecutions for advocacy; and denial of press access to newsworthy events and records. M Politician Erastus Corning II said: Our Constitution guarantees an individual the right to publicly espouse an unpopular cause and the same right to a number of individuals in peaceful assembly. For that reason, it is wrong to prohibit an individual or group from taking part in a public [athletic] event because of their beliefs or the policies of their government.I5 Archibald Cox, Harvard University law professor, wrote in his Freedom of Expression that: The authors of the First Amendment moved away from religious liberty through the freedoms of speech and press to the political rights to assemble peaceably and to petition government for reddress of grievances. Thus, as the freedoms of speech and of the press are linked to spiritual hberty on the one side, so they are tied and find justification in political liberty, and democracy on the other.l6 Thousands of copies of Cuban newspapers and periodicals enroute to United States citizens were seized by agents operating under the International Economic Powers Act and the Trading with the Enemy Act. The FCC reduced its regulations of the content of radio programming. Mark Fowler, Chairman of the FCC, said: There are very few friends of a free press in the world. Year by year

200 / The Decade of the 1980s those countries which enjoy afreepress grow fewer in number. Because a free press is the deadliest enemy of tyranny, it is the first target of tyrannical governments everywhere.I7 The National Reconnaissance Office used satellites to observe demonstrations and riots in the 1960s and 1970s, and could even identify and observe individual participants from those great heights. Unitarians in Baltimore applauded the burning of excerpts from Martin Luther, Thomas Aquinas, the Koran, St. Augustine, the Hindu Code of Manu, St. Ambrose, St. John Chrysostom, the Old Testament, Soren Kierkegaard, Karl Barth, and an anonymous Chinese author. Even if in jest or symbolically, this was indeed a strange ceremony for Unitarians. 1982 Art Buchwald, humor columnist, said: Since I write a humor column, I have a vested interest in a free press. I don't seem to have any problem making fun of the President of the United States, the Cabinet, Congress, the CIA and the FBI. I don't know if our leaders read the column or not, but since I've been writing it I have had no visitsfromanyone in a raincoat telling me I better knock it off.18 The Defense Department blocked the presentations of 100 technical papers scheduled for a San Diego symposium of the Society of Photo-Optical Instrumentation Engineers. Paul Drake of the Pubhc Broadcasting System, said, "One of the greatest misconceptions about the First Amendment is that it was designed primarily to protect the press. It wasn't It was designed basically to protect the public by making possible the widest possible flow of information a cornerstone of democracy.19 A First Amendment Congress was convened in Philadelphia in January when 300 persons representing media and other agencies met to discuss the basic nature of the free press concept. A second "working" session met in Williamsburg, Virginia, in March. Subsequently, state, regional, and local First Amendment Congresses were held throughout the nation. The Gallup Poll reported that 40 percent of the people thought there should be stricter curbs on the press. Upon being informed that 42 percent of the high school graduates of the Land of Id were illiterate, the King quipped, "It won't be long now before we can do away with censorship."

1980 Through 1989 / 201 Salaries of faculty members and administrators in state universities as well as regular university financial reports including departmental ones are public records available for pubhc inspection according to the Indiana attorney general. The Office for Intellectual Freedom of the American Library Association found that one-third of 860 high school librarians had experienced efforts to remove books from the library's shelves. Between 1970 and 1982 there had been at least 1300 such efforts. President Reagan's order 12356 was the most restrictive provision yet to deny access to governmental information by expanding the classification of documents. Even so, Reagan had said that in the First Amendment our founding fathers affirmed their belief that competing ideas are fundamental to freedom.20 The Society of Professional Journalists and the Reporters Committee on Freedom of the Press formed a joint legal research and defense program for freedom of the press litigations. The University of South Carolinafiredits football coach in a closed session of the Board of Trustees and never followed up with action as required in a public meeting despite pressure from the South Carolina Press Association. The United States Census Bureau indicated that 403,500 people were employed by 8,847 newspaper businesses. 1983 William M. Anderson, a college president, said, "The intellectually stifling results of censorship—while deplorable in any setting—would be the more abominable if allowed to exist within the college environment." 21 The American Civil Liberties Union changed its attitude toward libel in 1983 by endorsing the concept that the existence of the right of action for defamation is violative of the First Amendment when speech relates to a subject of public concern, which can be deemed to be related to anything having an impact on the social or pohtical system or climate. Ithiel De Sola Pool, journalism educator, said: For five hundred years a struggle was fought, and in a few countries won, for the right of people to speak and print freely, unlicensed, uncensored, and uncontrolled. But new technologies of electronic communication may now relegate old and freed media such as pamphlets, platforms, and periodicals to a corner of the public forum. Electronic modes of communication that enjoy lesser rights are moving to center stage. The new communication technologies have not inherited all the legal immunities that were won for the old. When wires, radio

202 / The Decade of the 1980s waves, satellites, and computers became major vehicles of discourse, regulation seemed to be a necessity. And so, as speech increasingly flows over these electronic media, the five century growth of an unabridged right of citizens to speak without controls may be endangered. n Materials often censored in 1983 included The American Heritage Dictionary, Newsweek, Of Mice and Men, The Diary of Anne Frank, Doris Day: Her Own Story, Huckleberry Finn and Lets Talk About Health. Haig Bosnajian, librarian, reported that the following books had been challenged or the subject of litigation in efforts to censor them from school libraries: The Catcher in the Rye, The Grapes of Wrath, Brave New World, Of Mice and Men, Catch 22, Go Ask Alice, Soul on Ice, Slaughterhouse Five, Male and Female Under 18, The Fixer, Down These Mean Streets, Cats Cradle, Dog Day Afternoon, The Wanderers, God Bless You—Mr. Rosewater, The Naked Ape, Black Boy, A Hero Ain It Nothin' But a Sandwich, Ulysses. M Twenty-eight broadcast and newspaper groups urged the Judicial conference to follow the lead of 40 states and permit electronic coverage of trials in 1983. By the end of 1983 nearly 14,000 motion pictures had been classified by the MPA Code. Many unclassified films were also exhibited in theaters. The First Amendment Congress, a coalition of media groups dedicated to the public's right to know, strongly objected to restraints placed on joumahsts attempting to cover the Grenada Invasion. It said, "The First Amendment guarantees the American pubhc more than a spoon-feeding of information by military and government spokesmen. Such methods of controlling the news defy tradition and deny die public access to information it needs and expects. The administration's Grenada press policy amounts to news censorship. We recognize and accept the need to keep military actions secret prior to execution. But, once troops are in combat, we cannot tolerate government policy that excludes or severely limits reporters and photographers." In Michigan most state and local government agencies violated the state's open meeting and freedom of information acts almost always and routinely. The National Commission on Free and Responsible Media was founded. It had no official standing and was not interested in laws or regulations governing the press, nor did it want to tell the media how to operate. The commission's goal was to inspire the public to think about and analyze the many issues surrounding the media's expanding role in American society. The National Newspaper Association found that

ly four percent of smaller

1980 Through 1989 / 203 newspapers had softened coverage because of the spectre of large libel awards. A 1983 order issued by President Reagan required that all persons having access to classified information had to sign a non-disclosure agreement as a condition of that access: anyone with a clearance for the higher "sensitive compartmented information" had to sign a non-disclosure agreement and to agree to pre-publication review, government agencies had to devise policies for regulating contacts with the news media to discourage leaks, and the development of investigative procedures to trace leaks including the forced use of polygraph tests on employees.2A People for the American Way, an organization which defends the First Amendment, reported there had been attempts to censor books, literature, school courses, and counseling programs in 48 states. Maine and Hawaii had no censorship episodes. President Ronald Reagan ordered an expansion of government authority to withhold defense and foreign affairs information from the pubhc. The White House complained about CBS early election returns and coverage. President Reagan called on news media to report only good news for a week instead of all bad news. Mort Rosenblum of the Associated Press said, "When U.S. authorities banned reportersfromwitnessing the invasion of Grenada, foreign journalists who admire our system asked how that was possible. I had no answer, and I still don't."25 Robert Rutiand, a historian, said, "The First Amendment was shaped to protect the republic from the domestic enemies who might attempt to shut off all discussion, shackle the nation with an established church, and deny the people access to their elected representatives." ** Wayne Sargent, an editor, said, "Freedom of the press does not guarantee fairness, accuracy or truth. It only creates the climate in which those things can be found from a variety of opposing viewpoints."27 Frederick Schauer, a law professor, said, "If people [the framers of the Constitution] who knew how to write in specifies chose instead to write in generalities, the only sensible explanation is that [they] did not wish future generations to be bound to the specific conceptions, problems, and solutions that the framers had in mind in 1776 or 1791." M William J. Small of United Press International said that the First Amendment matters because the worst news in a civilized society is no news.29 The Society of Professional Journalists gave President Reagan a failing performance grade on fourteen free press issues and a passing grade on only two during 1983. The only favorable marks were given for the State Department's

204 / The Decade of the 1980s resistance of UNESCO efforts to regulate journalists, and FCC chairman Mark Fowler's efforts to repeal regulation of broadcasters. 1984 Joining together to protest the refusal of the military to allow journalists to cover the Grenada invasion were the American Newspaper Pubhshers Association, the American Society of Newspaper Editors, the American Society of Magazine Editors, the Associated Press Managing Editors Association, National Association of Broadcasters, the First Amendment Congress, the Radio-Television News Directors Association, the Reporters Committee for Freedom of the Press, the Society of Professional Joumahsts, the Associated Press, and the United Press International. Harold W Anderson, news executive, proclaimed, "Free press—free people." M Lee Anderson, an editor, said that the first action of those throughout the world who would deny personal liberty is to deny the freedom of the press. 3l Reid Ashe, a publisher and editor, said, "Our society has an interesting relationship with the press. We don't demand the press act responsibly; we don't even rely upon the press to discipline itself. That's the job of the reading public."32 Stuart Awbrey, an editor, said that a free press is a nation's safety valve, permitting us to let off steam without destroying society.33 Tom Brokaw, television news anchor, said a free press is one of the enduring strengths of America. u Judith W. Brown, an editor and publisher, said that by printing the bad news we protect the right to print the good news.35 The Cable Communications Act of 1984 set a national regulatory policy for educational and government access channels, privacy protection for cable subscribers, media cross ownership, and employment practices. Censorship: 500 Years of Conflict was a major exhibit presented in the Samuel and Jeanne H. Gottesman Exhibition Hall of the New York Public Library on 42nd street. * The CIA could no longer limit record searches to only those documents in its possession on the date a Freedom of Information request was filled. Employees of the CIA and of the National Security Agency ha e long been subjected to censorship. For example, Charles E. Wilson, deputy director of public affairs for the CIA, reported that between 1977 and late 1984 the agency's Publication Review Board had reviewed 501 articles, 146 books, 60 book reviews, 29 speeches,

1980 Through 1989 / 205 6 letters to editors, 21 outlines, and 6 scripts—all written by CIA agents. The CIA stopped the pubhcations of 15 items, forced changes in 212, but approved the remaining 274 in their original form. Federal agencies were ordered to charge up to $35 per hour for persons to obtain information under provisions of the Freedom of Information Act. The federal government could refuse misclassified documents under the FOI Act if the standards had subsequently been changed. More than 60 persons spent May 20 to 22 discussing First Amendment values in a changing information system brought about by computer and satellite technology. The conference was a project of the First Amendment Congress. Gilbert Cranberg, a journalism professor, said, "A free press is America's squeaking hinge."37 Editor Linda Grist Cunningham said, "It is our responsibility as journalists to ensure that thefreeflowof information is maintained, for as long as many voices raise a chorus of ideas our freedom is assured." M Thomas I. Emerson, First Amendment scholar, said, "Partly as a result of the First Amendment and its accompanying body of law, George Orwell's 1984 has not come to pass in the United States."39 George Fattman, an editor, said that if the truth be known by those who seek it, there must be a free flow of ideas and ready access to facts. *° The Federal Communications Commission awarded 100 to 200 licenses each month for low power television stations in an effort to clear up its backlog of 12,000 applicants for Multipoint Distribution Service, a technology video distribution service. MDS uses over the air microwave radiofrequenciesin a 360-degree area. Subscribers use special microwave receivers to decode the scrambled transmissions. There would be ten MDS channels available for each area No licensee could control more than five of these channels. The FCC eliminated rules requiring television stations to broadcast public affairs programs, to limit commercial air time, and to maintain records of program broadcasting. The FCC had to delay its plan to allow ownership of 36 radio and television stations by an agency by 1990 because of objections from Congress. More than 50,000 applications for low power television stations were received by the FCC, which had earlier estimated there would only be 18,500. The Gannett publishing company launched a multi-issue national newspaper called USA Today, utilizing transmissions to printing plates.

206 / The Decade of the 1980s Journalist Nat Hentoff said, "Always the press should dig harder and take some risks. When things go wrong, it's not the reader who's wanting." 41 Unpublished investigative news material could be subpoenaed in Illinois only when the information could not be obtained any other way. Indiana's open records law established the public's right to inspect and copy public records. There were several exemptions. The law became effective January 1984. Larry Jinks, news executive, said that one of the burdens of freedom is that we have to earn it over and over.42 Beverly Kees, an editor, said that public exposure is a mighty force. One is inclined to be very, very good when everyone is watching.43 John M Lavine, a news executive, said, "At its core, [freedom of the press] is not our newspaper's right to sound off. It is the right of our readers to know what is happening in their community, to express their opinions, to make their own judgments." u John Marshall, an editor, said that this nation must be free to choke on the truth. "Indeed, presidents have gagged on it." 45 The National Labor Relations Board ordered the Passaic News in New Jersey to continue publishing a column of one of its staff members because cutting it out was an unfair labor practice. Walter Mears of the Associated Press said, "If the people are to decide what should happen tomorrow, they must be armed with the truth about what happened yesterday." " Jack Nelson of the Los Angeles Times said, "A free press plays an essential part in the delicate balance that exists in this country between individual liberties and the power of government. For unchecked government power can compromise or even crush individual liberties."47 In an address to the American Society of Newspaper Editors, Richard M. Nixon said that "as far as I am concerned now, I have no enemies in the press whatsoever." He also said, "People in the media say they must look at the president with a microscope. Now, I don't mind the microscope, but boy, when they use a proctoscope, that's going too far." * Rand Corporation concluded in a study that high estate taxes forced small newspapers into chain ownership.

1980 Through 1989 / 207 Dorothy Riddings, president of the League of Women Voters, in discussing the opinions of the questions in campaign debates, said that we do not expect journalists to be eunuchs.49 As part of its 75th Anniversary in 1984, the Society of Professional Journalists, planned the pubhcation of 244 letters and statements made or written by leading American media personalities discussing their perceptions of the values of a free press in American society. John Hohenberg, a retired professor of journalism of Columbia University, selected the media leaders for the book of letters. The Society of Professional Journalists urged Congress in 1984 to repeal the Fairness Doctrine applied to radio and television broadcasting. By May 1984 there were 186 low power television broadcast stations on the air in operation, and 174 more permits had been issued by the FCC. Channel 26 in Bemidji, Minnesota, which became the nation's first low power television broadcasting station, shifted to regular UHF status. Direct satellite television became available to central Indiana homes with movies, sports, educational programs, and news channels. Plans were to expand the service to 26 states. The Federal Election Commission ruled that broadcasters could offer free time to political parties. The FCC changed a 20-year old rule so that the owners of a radio or television station could sell the station at anytime instead of having to wait for three years. The broadcasting industry and the Justice Department reached a court-approved consent decree to end restraints on the duration or number of television commercials. Time dropped out of teletext activities; NBC and CBS cut back teletext plans; and Taft Broadcasting of Cincinnati experienced difficulties in selling its services. Teletext simply could not sustain itself financially. The video-text market might be worth $500 million by 1994, with up to 80 percent of its income from advertising, according to a 1984 Videoprint magazine. Mike Wallace of CBS News said, "Imperfect as is our free press, still we Americans have managed to keep alive our franchise of reading and listening and watching and making up our own minds, from the cornucopia of news, reports, opinions, analysis, and special pleading that abound unfettered in our press."50 Warner Electronic Home Services planned testing afrilltwo-way video service using telephone and cable systems in Pittsburgh. Warner Communications, General Telephone and Electronics, and a Bell Atlantic subsidiary combined to offer the service to banking, shopping, movies, and entertainment. President Ronald Reagan said, on the occasion of National Newspaper Week for 1984, that: The theme of the 1984 observance of National Newspaper Week, "Newspapers Lighting Freedom's Way," provides us with an

208 / The Decade of the 1980s opportunity to reflect on the importance of this institution to our way of life. As Herbert Hoover once said, "Freedom of the press is a foundation stone of American hberty." The Statue of Liberty stands as a beacon guide our great Republic through these troubled times just as a strong, independent, and free press illuminates our country's journey with the light of freedom's way. More than 275,000 federal employees had been required to sign prepublication review, censorship, and polygraph agreements by the Reagan administration. The Reagan Administration used the Immigration and Nationahty Act to keep persons it thought politically objectionable and foreign persons from being allowed to make speeches to American audiences. The FBI and the Internal Revenue Service sought full congressional authority to impersonate journalists to obtain information from persons under investigation. Joumahsts bitterly opposed the practice and plan. President Reagan asked for regulations prohibiting non-profit agencies with federal grants or contracts from engaging in political advocacy. The Reagan administration classified three Canadian films about the environment as pohtical propaganda subject to government monitoring under terms of the Foreign Agents Registration Act. The films were If You Love This Plant, Acid Rain From Heaven, and Requiem or Recovery. President Reagan was criticized by the Society of Professional Journalists for passage of a bill providing harsh criminal punishments for disclosing names of CIA agents, Justice Department guidelines for making FOI data more restrictive, Justice Department guidelines limiting FOI fee waivers for journalists, requiring advance payments for FOI search fees, seeking restrictive changes in the FOI, going to court to reduce FOI access, making it easier to classify and harder to declassify information, requiring government employees knowing sensitive information to sign away First Amendmentrigjitsfor life and submit to pre-publication reviews, Justice Department revocation of guidelines forbidding vague rules about publishing material without agency clearance, cutting CIA pubhc information and briefings, calling three Canadian films on nuclear war and acid rain propaganda, the fewest news conferences in 25 years, stemming embarrassing leaks under the guise of national security, using liedetector tests on employees, and using executive privilege to withhold Interior Department data from a House committee. The only favorable marks were given for the State Department's resistance of UNSECO efforts to regulate journalists, and FCC chairman Mark Fowler's efforts to repeal regulation of broadcasters. 1985 The Agents Identities Protection Act made it a crime to publish any information that identified an individual as a covert agent of the CIA or FBI even if the information was unclassified, or a pubhc record, or obtained from public sources. Kenneth J. Botty, an editor, said, "An unshackled press, free to probe, to pursue,

1980 Through 1989 / 209 to ask, to check, to wonder and to report, scatters the seed of truth in the field of human experience. Freedom is the crop."51 The California Board of Education rejected a series of science textbooks because publishers had catered to pressures to eliminate evolution study. The publishers agreed to revise the books to be scientifically accurate and comprehensive. The completed revisions, however, were so limited that science instructors criticized them heavily. School officials took iheMerriam Webster Dictionary out of the Carlsbad, New Mexico, classrooms because they believed it contained obscene words. Charleston, South Carolina, police arrested four television journalists for broadcasting the picture of a suspect charged with killing two persons. The police handcuffed die general manager, the news-director, the anchor man, and a reporter. ArivalTV station took pictures of the arrest. Ninth Circuit Solicitor Charles Gordon said, "This is not freedom of the press, but pure profit motive to make a buck and build ratings." John Rivers, president of WCSC-TV, said the solicitor's remarks were offensive and demeaning to the public's right to know. "If the police and the solicitor have the right to determine what the viewing and reading public can know and hear, then we are doomed to terminating our free society." Congress passed the Central Intelligence Agency Information Act which exempted CIA operational files from the federal Freedom of Information Act review and search provisions; however, CIA decisions are subject to review. The Central Intelligence Agency reaffirmed its ban on using journalists in agency activities. The Defense Department scrutinized 10,000 articles and books which it considered security-related. It also conducted 10,502 polygraph examinations of federal workers. The Judicial Conference of the United States rejected a request from 28 news organizations to permit television or photo coverage of federal trials. The Conference was made up of 25 federal judges and Chief Justice Warren Burger. A few weeks later Burger asserted that no television or camera coverage would occur in the Supreme Court as long as he was Chief Justice. William Margold, free speech advocate, said that no one has ever died from an overdose of pornography.52 X rated movies were widely available on video-tapes and became so popular for home viewing on VCR's that many X movie theaters went out of business. The National Coalition Against Censorship reported nearly 50 popular books had

210 / The Decade of the 1980s been embroiled in litigation because of censorship efforts. The National Conservative Federation planned a $1 million campaign to convince the public that the media had a liberal bias. The National Endowment for the Humanities awarded a million dollar grant to develop a national newspaper bank. This United States Newspaper Program will ultimately contain the contents of 300,000 newspapers published in America. Newsweek was taken from a tenth grade world history curriculum because a school board member thought it was too scutzy and too liberal. The Office for Intellectual Freedom of the American Library Association reported that an increase of 300 percent in reported censorships occurred between 1979 and 1985. Main battiegrounds far the more than 1,000 censorship efforts were the libraries of elementary and secondary schools. People for the American Way, a group that keeps records of attempts to challenge school programs and curricula, said that efforts to censor materials used in public schools had increased 66 percent between 1982 and 1985. Pornography became an eight billion dollar business. A federal law set penalties for procedures and distributors of kiddie pornography at a $ 100,000 fine plus ten years imprisonment for the first offense. The Justice department established a commission to study the effects of pornography on society, and provided seminars to aid prosecutors to attack pornography. In the United States there were more than 20,000 adult book stores and 900 X-rated movie theaters. Department of Defense personnel spent $300,000 on dial-a-porn calls from the Pentagon. John C. Quinn, deputy chairman of the Freedom Forum said that it is vital in a free society that we have a free vigorous and uninhibited press.53 The Reagan Administration continued its campaign to weaken the Freedom of Information Act by proposing amendments to Congress and by cutting back fee waivers authorized journalists. The administration authorized heavy use of the secrecy stamp. Denial of access to the Grenada invasions for the news media was the first occasion of governmental denial to the media to a war zone in the history of the United States. One estimate indicated at least one million dishes to receive direct satellite television broadcasts were in use in the United States by the end of 1985. The United States Information Agency refused educational certificates to a number of American documentary films which impeded their use in odier countries. The USIA said these films presented a point of view, yet the agency certified similar

1980 Through 1989 / 211 films having an opposite point of view. Rep. Timothy Wirth and 130 co-sponsors asked the House to designate March 16 as Freedom of Information Day. The First Amendment Congress urged the action, based on the birthdate of James Madison. Several states quickly designated the date for state recognition. R. E. Carter Wrenn, director of the National Congressional Club, headed up Fairness in Media, Inc., in an effort to have conservatives allied with the Jesse Helms faction, buy stock in CBS to gain ownership or control of the network news operation. Ted Turner, owner of Cable News Network Television, also made efforts to purchase CBS. Both efforts failed. The Federal Communications Commission planned to change its ownership restrictions for radio and television stations. The plan would allow ownership of as many as fourteen television stations. The first twelve would have to control no more than 25 percent of the "reach" of the nation's TV households. The owner could also buy into two additional stations which were owned primarily by minority persons controlling more than 50 percent of the shares of the additional stations, and could then increase the total audience "reach" to 30 percent. The FCC ruled that political ads which were obscene or indecent could be rejected by broadcasters. Political Action Committees could not force broadcasters to accept advertising under the equal access rule for political candidates since PACs are not candidates. More than 160,000 federal employees signed contracts agreeing not to write or speak about intelligence related subjects without preclearance. This compliance was forced despite a congressional prohibition of such a procedure. The Reagan Administration's use of lie-detector tests to find government employees leaking information to the press met solid opposition in Congress, among employees, and the media. The FTC issued an order making advertisements by dentists permissible and prohibited the American Dental Association from restraining its members from advertising. The Foreign Agents Registration Act allowed the Justice Department to require labels on material comingfromforeign nations. If the department decided the material was pohtical propaganda, a disclaimer had to be attached to it. Three Canadian films on acid rain and anti-nuclear war were so designated, denying use of the labels. August 4,1985, was proclaimed Freedom of the Press Day by President Ronald Reagan, commemorating August 4,1735, the date John Peter Zenger won his colonial court case against seditious libel charges.

212 / The Decade of the 1980s A Gallup poll indicated that 59 percent of Americans believed that media should not be restricted in covering military operations. The House of Representatives voted 216 to 193 to stop the Library of Congress from printing a braille edition of Playboy magazine. Daniel Boorstin, librarian of Congress, called the action censorship. People in Yuba City, California, staged a good-natured protest of being rated as the worst place to hve in the United States by the Rand-McNally Company. As part of the spoof, they gathered all the maps and books produced by the company and tossed them in a bonfire. 1986 Guido Calabresi, dean of Yale Law School, said that free expression is more important than civility in a university.54 Leonard W. Levy, professor and historian, said, "The wall of separation [between church and state] ensures the government's freedom from religion and the individual's freedom of religion. The second probably cannot flourish without the first." 55 Richard Kluger, in The Paper: The Life and Death of the New York Herald Tribune, said, "Every time a newspaper dies, even a bad one, the country moves a little closer to authoritarianism; when a great one goes, like the New York Herald Tribune, history itself is denied a devoted witness." He believed the greed of corporate publishers destroyed the newspaper. * A presidential Commission on Obscenity was appointed to prepare a 1986 report for the United States Justice Department for use in recommending new control laws. President Reagan appointed Edwin Meese to direct this commission's work.57 Benno Schmidt, president of Yale University, said, "There is no speech so horrendous in content that it does not in principle serve our purposes."58 1987 Anita Baker, singer, said, "I believe in the power of the spoken word."59 Ed Bradley, television journalist, said, "Most people in this country trust the press. They might not like some of the things we do, or the way we do them, but they trust the press. And most people in this country value a free press." *° In mid-1987, print and broadcast media were gratified by a decision of the Federal Communications Commission to discard its fairness doctrine. Senator Robert Packwood had tried for several years to convince his fellow senators to legislate against that policy, but Congress disagreed with him, and even passed a law making the fairness doctrine legally established. President Reagan vetoed this statute and a

1980 Through 1989 / 213 Circuit Court of Appeals directed the FCC to review the constitutionality of the doctrine. On the basis of this review, the FCC decided to scrape the policy because the old behef of scarcity of channels had been proven inaccurate and because the regulation stifled public debate about issues rather than facilitating discussion. Most important was the clear unconstitutional nature of the Fairness Doctrine in the view of the 1987 FCC commissioners. G. Gordon Liddy of Watergate fame said, "The press is like the peculiar uncle you keep in the attic—just one of those unfortunate things."61 John C. Quinn, deputy chairman of the Freedom Forum said that editing a newspaper is the most fun you can have with your clothes on. 62 Dan Rather, CBS news anchor said, "News is business, but it is also a public trust."63 Columnist William Safire said, "To communicate, put your thoughts in order, give them a purpose; use them to persuade, to instruct, to discover, to seduce." M Gerald M Sass of the Freedom Forum said that a First Amendment that protects only some of us is no First Amendment at all.65 The American Newspaper Publishers Association Foundation published a new edition of its Speaking of a Free Press in 1987 as a salute to the U.S. Constitution bicentennial celebration events. The booklet contains 200 years of notable quotations about press freedoms. 1988 President George Bush resorted to red-baiting by referring to "card carrying" members of the American Civil Liberties Union. * Fred de Cordova, television executive, said that the Lord created Heaven and Earth and, as an immediate after thought, writers.67 Lewis Lapham of Harpers Magazine said, "I think the best press is probably the most irresponsible press. As soon as the press begins to try to be responsible, it suffocates itself under the blankets of its worst pretensions." ** Flora Lewis, journalist, said, "Truth is the hardest substance in the world to pin down. But the one certainty is the awesome penalty, exacted sooner or later from a society whose reporters stop trying." ^ 1989 Floyd M. Abrams, attorney, said: Some journalists wrongfully consider the First Amendment so broadly

214 / The Decade of the 1980s they diminish it. They seem to think that the First Amendment is some sort of guaranteefromthe framers that journalists will be able to gather whatever information they want, speak to whomever they want, get any story they like as a matter of constitutional, legal First Amendment entitiement.70 James Batten of Knight-Ridder newspapers, said: Many of us were attracted to our careers because of the lure of public service, of being part of an institution so important to our free country that it is enshrined in the Bill of Rights. But the Founding Fathers did not set up a First Amendment Fund to pay for inquisitive reporters; that honor is left for newspapers' customers—their readers and their advertisers.71 Peter Jennings, ABC news anchor, said that "what I do is simply opening the windows of the world."72

Chapter 15

THE BEGINNINGS OF THE 1990s 1990 THROUGH 1994 Freedom of Expression 1990 AT&T agreed not to engage in any electronic publishing activities until the end of seven years, or until 1990. Its ownership of facilities could have created an unsurmountable monopoly. Ben Bagdikian, journalism educator, said: Each of these planetary corporations plan to gather under its control every step in the information processfromcreation of "the product" to all the various means of which modern technology delivers media messages to the public. l Dennis Barrie and the Contemporary Arts Center in Cincinnati were acquitted of pandering for showing erotic photos by Robert Mapplethorpe.2 Lynne Cheney of the National Endowment for the Arts said, "Free speech is a cause that is uniting peoplefromacross the political spectrum, and almost daily there is a new and vigorous defense of it."3 Bruce L. Christensen of the Public Broadcasting System said, "It has been said thatfreedomof expression—which often forces us to confront that which we may find unsettling—is the price of democracy. But it is, in fact, the reward." 4 Walter Cronkite, television journalist, said, "The press should befreeto go where it wants, when it wants, to see, hear and photograph what it believes is in the public interest."5

216 / The Beginnings of the 1990s Douglas Davis, an artist, said, "I see us facing the death of our cultural soul through a prolonged period of self-censorship that could dilute the brashness and irreverence that still characterize the best contemporary art. 6 Morris Dees, an attorney, said, "The jury has spoken loud and clear that in this country the First Amendment guarantees the right to hate people and say what you want, but not the right to hurt people."7 Walter Dellinger, a law professor, said, "The individual choice of millions of Americans to respect the flag would be far less meaningful if it were the only choice one could make to avoid imprisonment by the government."8 Michael Gartner of the National Broadcasting Company news division said, "While we were fighting and winning [the Persian Gulf] for one principle, we lost another principle of democracy! The idea that a person can say what he thinks, wear what he wants, believe what he believes, and not get hounded or harassed or beat up or fired for it." 9 David Halberstam, journalist, said that it is increasingly difficult to censor thought in an age of sophisticated electronic media.10 Jay T. Harris, an editor, said that newspapers should be one thing—that instrument in society that would endure the maintenance of an informed citizenry. n Harry Heath, a journalism school dean, said, "Censorship occurs when—and only when—an outside force interposes itself upon a newspaper owner and denies him the right to make editorial judgments that are guaranteed in the Bill of Rights. Censorship is not a synonym for editing." n Christie Heftier, publisher of Playboy said, "There is a tendency in some quarters to decide that if somebody doesn't like a book or a painting, what they do is try to make sure nobody else can see it." I3 Senator Jesse Helms said, "Good, decent tax-paying citizens are up in arms over blasphemous works of art. If that's chilling censorship, make the most of it. M Gary Hoenig, an editor, said that the tide of public opinion shifts. The value of a free press doesn't. l5 James E. Jacobson, an editor, said, "Would those who protest press 'arrogance' truly feel or be better off if there were no press out there digging out answers to hard questions or revealing facts that those in power would rather cover up?" 16 A survey conducted for the Thomas Jefferson Center for the Protection of Free Expression discovered that 58 percent of respondents believed the government should

1990 Through 1994 / 217 be able to censor and 28 percent said freedom of expression did not belong to media. Donald S. Kellerman, a newspaper executive for the Times-Mirror, said, "The public continues to value what we call the press' watchdog role. They want neutral and unbiased reports, they tell us, even in wartime." 17 Ian MacKaye, a rock musician, said, "Censorship isn't just about burning books. There are less blatantrestrictionsin force on art and music and other forms of creative expression. It's everywhere and it must be exposed." 18 Madonna, actress and singer, said that freedom of speech is as good as sex.19 Frank McCulloch, an editor, said that, for better or worse, so long as this remains an open society you and we—a free people and a free press—are stuck with each other.20 Dave Marsh, a literary critic, said, "When I was 14,1 went into my father's closet and found a Henry Miller book (Tropic of Capricorn) that had been considered very controversial and censored. I read it, trying to find sexually explicit material. What I found instead was great hterature."21 Natalie Merchant, a rock singer, said, "There is one tradition in America I am proud to inherit It is our first freedom and the truest expression of our Americanism: the ability to dissent without fear." M Bill Monroe, a television journalist, asked why in the 1990s do we still have laws abridging the freedom of the electronic press? M The Movie Producers Association revised its rating code to provide for PG-13 with an imphed caution about some movies.24 In the 1990s there were more than 530 million radios in the United States and there were more than 10,650 radio stations. M Stephen Stills, singer and song writer, said, "The vision of your artists must never be repressed, edited, or in anyway constrained. The audience will notice, and they will not long endure the insufferable presumption of government-inspired editing."26 Women in Communications, Inc., stated that the First Amendment—the shining star of our profession—will continue to shed light on the 200 years ahead only with all of our continued vigilance. v Nancy Woodhall of the Freedom Forum said, "The big problem today is whether or not average people understand that the First Amendment freedoms are the foundation of democracy." M

218 / The Beginnings of the 1990s 1991 Floyd Abrams, attorney, said that if the press has values it cares about, it should articulate them lest it be understood as having no values at all.29 Advertising revenue reached nearly $127 billion, newspapers approached $31 billion and broadcast media took in nearly $36 billion. Peter Arnett of Cable News Network said, "I don't believe in taking the kind of risks that really are going to get myself or my colleagues killed. But I am prepared to step across the unknown, to weigh the odds against the ultimate story." M Richard Baltimore, U.S. diplomat, said that relations between the media and government in a democracy are never easy.3l Douglas J. Bennett, president of National Public Radio, said, "Instead of this frail politics of flag-burning and constraints on the NEA—this politics of evasion—we must direcdy affirm the importance of individual freedoms in a society that not only tolerates but welcomes differences."32 Leo Bogart, an advertising and pubhc relations expert, said: The largest of our mass media, the daily press, traditionally the forum for confrontation and irreverence, has undergone a steady attrition of competition and a general retreat to the safety of the middle ground.33 David Boldt, an editor, said, "The promise of a free press is not the truth will be available and packaged for you on your front step every morning but that it will ultimately emerge." M December 15,1991, was a bicentennial date of great significance. The Committee on the Judiciary of the United States Senate introduced in 1982 legislation to establish a national commission to arrange for and encourage a bicentennial observance of the United States Constitution. Congress authorized the Commission in 1984 but it did not function until late 1985, and it did so in secret meetings under the Chairmanship of Warren Burger, Chief Justice of the Supreme Court. In a press conference President George Bush said that ironically, on the 200th anniversary of our Bill of Rights, we find free speech under assault throughout the United States including on some college campuses.35 Stephen Chapman, a columnist said that policing expression because of how people may react to it is exacdy what the First Amendment is supposed to prevent. M Tom Curley, an editor, said that the First Amendment raises the human spirit. It assures us the joy of expressing our dreams.37

1990 Through 1994 / 219 Everette E. Dennis of the Media Studies Center at Columbia University said, "No one actually controls freedom of thought or speech by writing rules or fashioning a draconian regime to enforce them. The good intentions that lead to restrictive codes take pubhc discussion underground."38 Dan Ehrlich, a journalist, said, "Whereas democracy will eventually be destroyed if it is not practical, the same can be said of a free press. It must be put to use and defended, no matter what the cost, or else it will erode to nothing."39 Lt. Col. Jim Fetig of the Army said, "We in the military want a free press in the field. We ask that you not put us at risk in the process." *° In 1991, people talked about freedom of expression; what many of them said is reported in The 1992 First Amendment Calendar of the Freedom Forum of Arlington, Virginia, an agency dedicated to the First Amendment, the foundation for free press, free speech and free spirit. Michael Gartner, president of NBC News, said, "The freedoms we cherish in this country—the freedom to speak, to worship, to assemble—aren't needed to defend the rights of the bland minority or the loving majority. They were enacted to protect the rights of the outraged and the outrageous, the oppressed, the hated and the hateful."41 Henry Geller, communications scholar, said, "The policy of open entry and competition of electronic media has furthered the underlying premise of the First Amendment that the American people should receive information from as diverse sources as possible."42 Ira Glasser of the American Civil Liberties Association said, "Anyone who would allow the government to ban or punish speech should first imagine his enemies in a position to do so." 43 Martha Graham, dancer, said that censorship is the height of vanity.

u

Morton H. Halperin, while with the American Civil Liberties Union, said, "The First Amendment was not based on the premise that the framers created the most efficient system They recognized that much of the Constitution made it harder for the government to function. This was, however, a price they thought necessary to ensure the liberty of the people."45 Jane Heahy, an editor, said, "This nation can't start carving out 'exceptions' to the First Amendment simply because we feel extremely uncomfortable with what is being said. It's the unpopular speech that needs the real protection, not the popular speech."46 Thomas Kelley, an Army general, said on his retirement that having a free press

220 / The Beginnings of the 1990s has served the United States well for 215 years.47 Steven G. Kellman, a professor, said, "Ethnic verbal abuse has to be protected as vigilantly as therightto recite the Pledge of Allegiance. Otherwise, the Constitutional amendments that protect us are merely words." ** Kary Love, an attorney, said, "free speech is expensive. It costs lives to win. Child, lover, home have all been sacrificed to its winning."49 Nathan Lyons, a photographer, said, "I have to be committed to the notion of art not being defined That's what creativity is essentially about. Those voices that say we should make art subservient to American values miss the point of how art functions in a democracy." * Walter R. Means of the Associated Press said that unless we tell the voters about the people who want their support for office, nobody will.5I Cortland Milloy of the Washington Post said, "Freedom of the Press means more than a machine pressing type against paper; it also means freedom of the heart to express itself."52 Publisher Burl Osborne said, "The freedom to have a contrary view is what free expression in America is all about. So far."53 Osborne of the Dallas Morning News said, that censorship has become the strategy of well-intentioned people reacting to views they find repugnant. He also said, "Many of us opposed the proposed [anti-flag burning] amendment not because we don't love the flag; we opposed it because we do love the flag, and the Constitution and Bill of Rights that it stands for." * Jean Otto, president of the First Amendment Congress, said: "We see much about freedom that distresses us, that causes uncertainty and fear. And yet we recognize that it is the most valuable gift ever bestowed on citizens anywhere. Our challenge is to keep it Despite change and misgivings, two hundred years into the Bill of Rights, the First Amendment has become part of our genes. It's a birthright. The First Amendment's value is linked directly to its use. To preserve it, it must be shared. Unless it is everyone's, it can be no one's." 55 Charles Overby, president of the Freedom Forum, said, "The First Amendment is the cornerstone of all freedoms. If the First Amendment goes, individual liberties across the board will vanish." x Judith Reynolds, a journalist, said, "Freedom of expression is at the heart of creativity. To plumb creative depths, artists, musicians, writers, and dancers must be free to explore unknown territory."57

1990 Through 1994 / 221 Frank H T. Rhodes of the Freedom Forum said, "Free and open debate on a wide range of ideas, however outrageous or offensive some of them may be, lies at the heart of a university community."58 Bruce Sanford, attorney, said, "If editors and journalists insist on accuracy, professionalism and sensitivity in reporting the public will likely support a free press in the broadest sense." 59 Sydney Schanberg, a journalist said, "The caging of the Press in the [Persian] Gulf has nothing to do with mihtary security. It is an act of political security out of fear that a free flow of information about the war could change public opinion." *° Benno Schmidt, Jr., president of Harvard University, said, "A university ought to be the last place where people are inhibited by fear of punishment from expressing ignorance or even hate, so long as others are left free to answer."61 Richard M. Schmidt, an attorney, said that no government loves a free press. At best governments "tolerate" a free press.62 1992 Rodney A. Smolla, law professor said: Freedom of speech is a human yearning—insistent, persistent and universal. The First Amendment embraces a right to defiantly, robustly and irreverently speak one's mind just because it is one's mind. Peaceful protest displaces more violence than it triggers; free debate dissipates more controversy than it stirs. A nation committed to an open culture will defend human expression and conscience in all its wonderful variety, protecting freedom of speech, freedom of the press, freedom of religion, freedom of association, freedom of assembly, and freedom of peacefiil mass protest. These freedoms will be extended not only to pohtical discourse, but to the infinite range of artistic, scientific, rehgious, and philosophical inquires that capture and cajole the human imagination. 63 Paul Steinle, a professor, said, "Our nation's understanding and appreciation of the First Amendment is not passed along genetically. It must be reaffirmed and defended, over and over. Keep fighting and keep winning." ** Chuck Stone, a journalism professor and columnist, said, "The ultimate expression of free speech lies not in the ideas with which we agree, but those ideas that irritate us." 65 Nadine Strossen of the American Civil Liberties Association said that campus speech codes are imdermining free speech, and they are doing nothing to stop racism and bigotry. **

222 / The Beginnings of the 1990s The Students Right to Know and Security Act (20 U.S.C. 1092, Section 204 and 205) provides: Each eligible institution in any program under this tide shall on September 1,1991, begin to collect the following information with respect to campus statistics and campus security policies of that institution, and beginning September 1, 1992, and each year thereafter, prepare, publish and distribute, through appropriate publications or mailings, to all current students and employees, and to any applicant for enrollment or employment on request, an annual security report containing at least the following information with respect to the campus security policies and campus crime statistics of that institution. Statistics concerning the occurrences on campus, during the most recent school year, and during the preceding school years for which data are available, for the following criminal offenses reported to campus security authorities, or local police agencies: murder, rape, robbery, aggravated assault, burglary, motor vehicle theft. Statistics concerning the number of arrests for the following crimes occurring on campus: liquor law violations, drug abuse violations, and weapons possessions. Robert J. Wagman, an author, said, "Speech and expressive action that is supported by a majority of the population does not need protection. The First Amendment protects the unpopular."67 Jonathan Yardley of the Washington Post said, "Hate speech regulations not merely attempt to impose a uniformity of thought on the campus; they also deny free expression to those who dissent from the consensus." a J. Herbert Altschull, journalist and professor, said, "Unhappiness with the media is nothing new; the messenger has always caught hell for bringing bad news." 69 The American Association of University Professors said that on a campus that is free and open, no idea can be banned or forbidden.70 Terry Anderson, an Associated Press reporter who had been held hostage in Lebanon and thefirstwinner of the Free Spirit Award, said, "In the first few years we had almost no information about what was happening. We were cut off from the news for quite a long time. And I have to say that bothered me a lot in the first couple of years. I was a journalist. I wanted to know."71 Frank Blethen, publisher, said, "The strength of this country's democracy is the breadth and diversity of its news media." n Ben Bradlee, retired editor of The Washington Post, said, "Why is it so important, this endless battle for freedom of the press? Because the truth is so important. This is what the people need. This is what the people deserve. This is what we journalists are put on this earth to discover."73

1990 Through 1994 / 223 Alan Brinkley, a history professor, said, "I don't think the media's role is to please the public; when they know things, they should report them."74 Martha Burk, president of the Center for Advancement of Public Policy, said, "Someone has to create public outrage, and no one is better positioned to do it than members of the media."75 Senator Robert L. Byrd said that television is not just bubble gum for the mind but packaged corruption for the soul.76 A law in California (Cal. Educ. Code, section 66301,48950, and 94367) applies to all public and private colleges in the state except those controlled by a religious organization. The law provides college students with a means to combat speech restrictions in State Courts. A law in California (Cal. Educ. Code 66301, 48950, and 94367 applies to all public and private high schools in the state except those controlled by a religious organization. The law provides high school students with a means to combat speech restrictions. California Education Code section 6738 requires that campus security agencies turn over campus crime reports requested by any student, employee, or media representative or pay $1,000 fine if they fail to do so in two business days. The law applies to all public universities and private colleges having 1,000 or more students and receiving public funds for student financial aid. Matty Chiva, psychologist and educator, said, "Certainly, television contributes at least to opening up the world for children. You sit there, you zap, and you have the world at your feet."77 Reese Cleghorn, journalism dean, said, "Suppression of freedom of expression has no place in a democracy and no place at a university."78 Tricia Deering of the University of Wisconsin said that newspapers will always be the thinking person's vehicle to information.79 Alan Dershowitz, attorney, said, "We have an obligation to speak more and defend the First Amendment. Tell people the First Amendment matters for everybody." w James F. Fitzpatrick, attorney, said, "An artist cannot compartmentalize one's creative life into a Dr. Jekyll who produces acceptable art while using federal funds, and a Mr. Hyde whose creativity rangesfreelywhile using private funds." 81 An interactive museum of news was under development at The Freedom Forum

224 / The Beginnings of the 1990s World Center. On May 4, 1992, Chairman Al Neuharth announced at the annual newspaper publishers' convention in New York City that Freedom Forum trustees had approved $12 million for development of "The Newseum." Neuharth said, "This museum of news, newspapers and free press, free speech and free spirit will serve news professionals, journalists, educators, students and the public which reads and consumes every day's news. It will teach about the free press and its people—yesterday, today and for the future, from New York to New Zealand and from Washington to Warsaw." John Frohnmayer, former chairman for the National Endowment for the Arts, said, "The guts of the First Amendment is still the nose-to-nose ability to stand there with someone with whom we disagree and argue respectfully and logically toward some kind of broadening of the middle." w Whoopi Goldberg, actress, said, "I want to hear what [white supremacist Tom Metzger] has to say, how he got his views. I may not like them, but I can't deny that people like him exist." w Carl Jensen, founder of Project Censored, listed these news subject areas as having been censored or pressuredfromadequate reporting or discussion in the media in 1992: 1. The media sell-out to Reaganism. 2.

Corporate violations dwarfing of street crime and violence.

3.

Many election year issues were censored.

4.

The United States became the world's leading merchant of death.

5.

Iraqgate and the death of the Watergate law.

6.

The war on drugs was failing.

7.

Federal regulations on profiting were trashed.

8.

Imposition of government secrecy.

9.

Corruption of the press by advertising pressure.

10. The unseen and covert budget of the Pentagon. 11. Oil, gas, and nuclear interests blitz solar power. 12. Weakness of the EPA.

1990 Through 1994 / 225 13. Sterility. 14. The Pentagon blitzes the news media. 15. Plutonium. 16. Using native American lands to dump nuclear waste. 17. Norplant birth control implants. 18. Electric automobiles. 19. Chemical and nuclear poisoning of the Pacific. 20. Exploiting Ecuador for gold. 21. Selling pollution for profit. 22. Destructions of the rain forests. 23. Censorship through bribery. 24. Desecration of native American sites. 25. Shell's no-pest strips. 26. Iran/Contra.84 Ervin "Magic" Johnson, basketball player, said that everybody has their own opinions, and they should speak their mind.85 Jack Kelley, a reporter for USA Today said, "much of the excitement of covering the [Persian Gulf] war for me and other reporters was trying to work without the help of the United States government or without the help of the government of Kuwait. But if you had to rely on the United States government, we never would have learned the true story of the war." M Jane Kirtley, director of the Reporters Committee for Freedom of the Press, said, "Emerging democracies in Europe and elsewhere are embracing the concept of freedom of the press with abandon. We fight no less zealously to retain those rights today. We owe it to ourselves and our posterity." ™ Gene Lanier, a professor, said, "Intimidation and fear of controversy sadly sometimes result in the chill of self-censorship before the fact of imagined or anticipated pubhc outrage." w

226 / The Beginnings of the 1990s Frank McCulloch, an editor, said, "Pretty clearly, (joumahsts have] done an abysmal job of explaining to our fellow Americans how a free press fits in a society, how totally interdependent they are. Neither can exist without the other and remain free."89 The Motion Picture Association of America made an additional revision of its movie rating system. ** Burt Newborne, a law professor, said, "The First Amendment problems in the next decade will be very different than what we've seen before. It used to be the good guys versus the bad guys. It used to be very easy to feel good about protecting free speech. For the first time, we have to argue for the rights of advertisers to sell dangerous products; that won't be so easy to feel good about."9! Allen H. Neuharth, chairman of the Freedom Forum, said, "When voices of democracy are silenced, freedom becomes a hollow concept. No man or woman should be sentenced to the shadows of silence for something he or she has said or written."92 William B. Northrop, a pubhsher, said, "There is something deep inside the human spirit that leads men and women to risk their lives just for the privilege of speaking out."93 Canaille Paglia, an author, said, "I am pro-pornography —all the way through kiddie porn and snufffilms."** Chris Peck, an editor, said, "Instead of laws limiting speech, this nation needs orators, spokesmen and eloquent voices that can use words to their highest purpose."95 Anne-Imelda Radice, acting head of the National Endowment of the Arts, announced that she could tell the difference between "nude" and "naked." % Norman Schwarzkopf, Army general, said that he believed very much in the American pubhc's right to know. ** Donald W Shriver, Jr., an ethics professor, said, "One of the tasks of the press is to supply news consumers with a reasonable diet of cognitive dissonance, to afflict us when we become too comfortable." * John Seigenthaller, chairman of the Freedom Forum First Amendment Center at Vanderbilt University, said, "Those of us in journalism recognize that our founding fathers had a vision of a society that welcomed controversial speech. We must recognize, however, that this society today does not understand or appreciate that vision."

1990 Through 1994 / 227 He also said: We suggest that journalists everywhere have the opportunity to practice their profession in an environment of maximum freedom: from government control, from censorship and from punishment. Where the press is controlled, censored or punished, there the press is not free. This is not an American concept, but a concept that rings the bell of freedom everywhere." Dolph C. Simons, Jr., a trustee of the Freedom Forum, said that a free press begins and ends with the comprehensive and continuing education of journalists, both present and future. 10° Sam Stratman, Congressional spokesman, said, "We in no way seek to condone hateful and bigoted speech. But iffreespeech means anything, it means the right to say things unpopular—things that other people disagree with." 101 Pat Sloyan, Newsday Pentagon correspondent, in discussing covering the next war in the Freedom Forum 1992 Annual Report, said: Secretary of Defense Dick Cheney... ripped up the pool arrangement so that no one could see the death inflicted by American troops in Panama. Now we were gonna fix that after Panama. We go to Desert Storm and ... there's no eyewitness account of any of the ground batdes ... The stories that were cited in the Pulitzer Prize committee were stories supposedly covered by a pool. I talked to reporters in that pool. Leon Daniel, one of the best correspondents I know... I said, "You were with the First Mech (1st Mechanized Division) when they went through the line, buried all the Iraqi troops." I said, "What did you see?' He said, "We didn't see anything." I said, "This is a two-day operation. You had to see something." He said, "No, we were held back... I don't think this is facilitating coverage ... I think it was a calculated effort to keep us from doing our job." Robot Strauss, ambassador to Russia, said, "Democracy presupposes the ability of the people to properly govern themselves and that requires a constant flow of truthful, reliable information to the people. And that requires more than anything else a free press." 102 Lawrence Tribe, professor of law, said that if there is any part of the Constitution that ought to be beyond partisanship, a bedrock principle, it is the First Amendment.l03 An editorial in the Washington Post pointed out that: The preservation of a forum in which even insulting, hurtful and outrageous ideas can be expressed is an essential price of our system; without itfreespeech would be fatally undermined. The use of the First Amendment is either heralded or vilified, depending in large part on our

228 / The Beginnings of the 1990s personal biases about the subject matter seeking constitutional protection. m Nancy Woodhall, a trustee of the Freedom Forum, said: Attack journalism and tabloid journalism have their place. They get things out in the open. Once they are out in the open, the media have a responsibility to try and give the story perspective that has real meaning for readers.105 Columnist Eve Zibart said, "Ifirmlybelieve that unpopular speech is the most important to protect, because it is the most telling evidence of our commitment to the First Amendment."106 1993 Peter Arnett, a CNN reporter, said, "Journalists have never been in more danger, nor have they ever been more important." m Louis D. Boccardi of the Associated Press said, "Journalists endure hardships, danger, give their lives so thatfreepeople may know the truth as best we canfindit. We owe them so much." m There were 1150 commercial television stations authorized by mid-1993 and there were also 364 educational stations.109 John Frohnmayer, a First Amendment advocate, said, "The First Amendment is an essential part of cultural policy because it gives the artist, the thinker, the social commentator, therightto speakfreelywithout intellectual restraint of any kind." no Michael Gartner, a publisher, said, "It is abhorrent and awful speech that needs to be protected. Nice and polite words can take care of themselves." n i Ira Glasser of the American Civil Liberties Union said: The First Amendment represents the bedrockright—thefloor on which all the otherrightsrest. If you don't in this country have therightto believe as you wish, express yourself as you wish, associate with whom you want, none of the otherrightscan be maintained. m Anthony Griffin, an attorney, said: When someone walks in the door who is a thug or a hoodlum, or wearing white sheets, you can't say, "No way. I won't represent him." Without hesitation you say, "It will be an honor to defend the First Amendment." m Griifin also said, "The Klan, the Republican Party, the Democratic Party and your garden party all have arightto assemble, organize, and advocate their positions, no

1990 Through 1994 / 229 matter how odious." IW Felix Gutierrez, Freedom Forum West Coast Center, said, "In a society of diverse viewpoints, unless the First Amendment has equal meaning for everybody, it doesn't have meaning for anybody." 115 Columnist and Author Molly Ivins said: In this country, we get so scared of something terrible—of communists or illegal aliens or pornography or crime—that we decide the only way to protect ourselves is to cut back on our freedom. Well now, isn't that the funniest idea—that if we were less free we could be safer? U6 Leanne Katz of the National Coalition Against Censorship, said, "We can't allow these myths to continue—that censorship is good for women, that women want censorship and that those who support censorship speak for women." ll7 She also said, "To say that pornography threatens women makes us think there is some kind of quick fix." Ann Lewis, a political consultant, said: I do not believe we should allow government agencies to tell women or men how we should think or write about our lives, including our sex lives. I don't think those kinds of laws are good for anybody and I know they're bad for women.118 Charles J. Lewis, a bureau chief for the Hearst News Service, said, "The more I see of other nations, the more I'm convinced that what makes America great is its dedication to personalfreedom—especiallythe First Amendment." 119 Robert Miraldi, journalism professor, said, "Good ideas crowd out bad ideas. No one has to ban ideas that offend or don't make sense. We simply need to drown them out. If they're weak, they'll disappear." I2° Stephen Montiel, president of the Institute for Journalism Education, said, "If newspapers are unable to portray accurately the totality of their communities, they endanger the very essence of America as a democratic society, as well as their own journalistic and financial viability." 121 Jack Nelson of the Los Angeles Times said, "A free press plays an essential part in the delicate balance that exists in this country between individual liberties and the power of government m For unchecked government power can compromise or even crush individual liberties." 123 Burt Neuborne, law professor, said, "The [Bill of Rights] is written like a poem, and we read it like a shopping list. And that's a tragedy, because it makes it harder to make a persuasive case for those values." m

230 / The Beginnings of the 1990s Kit Oslin, a country musician, said: All my career I have written songs about whatever I wanted to say. Thanks to the First Amendment, all of us in America are not subject to someone else's opinion of what is correct speech and what is not. But, thank God. I can make up my own mind about them.125 Mitchell Pearlman of the Connecticut Foundation for Open Government said, "Freedom of information is really a pubhc right. The press happens to utilize it, but it's a public right." l26 William Raspberry, a columnist, said: I admit the constitutional right of the rappers and the hip-hoppers to their foul language. I admit the constitutional right of the record companies to earn serious money by producing and marketing such trash. But some things that are entirely constitutional are nonetheless deadly. Neither the First Amendment nor common sense require us to be parties to our own degradation.127 Ralph Smith, a law professor, said, "The right to protest injustice and oppression deserves no less protection than the right to publish." m Tony Snow, a columnist, said: The real threat to the First Amendment comes from journalists who gladly serve as megaphones for the prestigious and powerful and hiss at colleagues who ask impolite questions.129 Nadine Strossen of the American Civil Liberties Union said, "The First Amendment protects the right to be a racist, to join racist organizations, to express racist beliefs—but not the right to engage in racists attacks." 13° Christine Wells of the Freedom Forum said, "The fundamental freedom of a free society is a free press—all other freedoms follow." m Journalist Betty Anne Williams said: Promoting diversity is still the best means for the media to portray a turbulent, pluralistic society. It's the best way to celebrate and protect the democratic principles that make it possible for journalists to practice their craft, and for the pubhc to complain about the job they do.132 Jonathan Yardley, a columnist, said, "Words can and do hurt, but to place limitations on them is a flat violation of the spirit and letter of the Constitution. It is, in a word, un-American." 133 1994 The American Library Association's Office for Intellectual Freedom directed by

1990 Through 1994 / 231 Judith Krug reported 760 challenges to books in 1994, an increase of 8.3 percent over 1993. The most challenged bode was Daddy s Roommate by Michael Wilhoite while the author most often challenged was Alvin Schwartz. Terry Anderson, journalist, said, "When a government or a group wishes to suppressfreedoms,it begins with joumahsts because everyone knows that free speech and freedom of the press is a basis for all other human rights." 134 Joseph Angotti, a communications educator, said, "Good journalists should always question authority, always pound their beats, always do their research, and then, when they come up with the goods, they should nail the bastards." 135 Peter Arnett, author and journalist, said, "In a world where information is proliferating and eagerly dispensed and sought, it seems to me pathetic that United States military authorities sometimes are so hostile to the press." 13<s Book sales surpassed $20 billion. Textbooks brought in $5 billion. Children's books achieved the greatest increase.137 Ignatz Bubis, a human rights activist, said that human dignity and human rights can't take a back seat to free speech. m Cable television was available in 60 million homes.139 Jim Carrey, a comedian and actor, said, "Making movies is not about pleasing critics. It's about touching a mass audience." l4° Henry Cisneros, a cabinet official, said, "There is no higher value in a democracy than the respect for a person's right to speak his or her mind on public questions." U1 Bill Clinton, U.S. President, said, "I have not gotten one damn bit of credit from the knee-jerk liberal press. I am damn sick and tired of it." U2 Shelby Coffey HI, newspaper editor, said, "At our best, we try to bear witness to the truth, give voice to the voiceless, present knaves, fools and villains and all the surprises that entails." U3 Thomas A. Constantine, a politician, said, "The press, in my experience, has been the most effective weapon against corruption in government that I have ever seen." U4 Margarita Engle, an author, said, "Without freedom of expression and freedom from terror, tyranny can persist within any economic framework." M5 Susan Estrich, an attorney, said that the truth is that most Americans don't really care very much what the press thinks of the president. "Most Americans don't think

232 / The Beginnings of the 1990s much of the press," she said.146 John R. Finnegan, Sr., a First Amendment advocate, said, "The media seek to maintain a balance on a constanuy shifting tightrope of personal privacy, access to information, and government accountability." 147 Congressman Barney Frank said that we all have the right to call each other names. Rudeness is a deeply held constitutional value. i48 Jerry W Friedheim of the Freedom Forum said, "The First Amendment is freedom's gravity; it holds together all our individual liberties." 149 Editor Michael Gartner said, "Dissent is part of democracy. The First Amendment is there to protect the outrages and the outrageous, the abhorred and the abhorrent, the despised and the despicable." 15° David Gergen, while a White House counselor, said, "What journalism is all about is the freedom of the press to be tough, to ask tough questions and to hold people accountable who are in positions of responsibility around the world." 151 Felix F. Gutierrez of the Freedom Forum Pacific Coast Center said, "There's supposed to be diversity of opinion. There's supposed to be newspapers that stand for something. If all newspapers were supposed to be the same, then we wouldn't need a First Amendment." 152 John T. Harding, a news executive, said, "We (the press) ask the tough questions not because we are opponents, but because the questions need to be asked." 153 Irvine O. Hockaday, a business executive, said that the journalist and the business person have quite a bit in common; if that conclusion surprises you, it shouldn't—yet if that conclusion bothers you, it should.154 Edward S. Herman, senior editor ofLies of Our Time said: The evil that LOOT was designed to confront, institutional bias in the major media, has not abated in the past five years; it remains as powerful as ever, and will become so as the media become increasingly concentrated in conglomerates of global scope.135 Michael C. Jeneway, a journalism dean, said, "Again and again the most careful of polls will record at one and the same time, public opinion applauding the press for its watchdog role, and condemning it for the abuse of that power." ,56 Franklin G. Jenifer, an educator, said, "It is far better to allow the expression of hateful views in the light of day, where they can be exposed for what they are: vile, hurtful, insensitive and wrong; instead of sacrificing the First Amendment rights that

1990 Through 1994 / 233 are so precious to us all »

157

Alan Kay, a computer scientist, said, "The role of journalists is not to be hunters and gatherers of information but to wake people up, to be the eyes of our culture." l58 Ron Kirkeeng, cable TV executive, said: Anytime anybody wants to control what the rest of the community watches, you run into censorship problems. I have enough trouble understanding why people can't control what's on TV in their own house. Now they're talking about controlling what's on in their neighbors' houses.139 Ted Koppel, TV news anchor, said, "A free press is usually among the first victims of an angry and frustrated society. As social problems increase, there will be inevitable calls for controls on the media." 16° Andrew Lack, a news executive, said that social mayhem has never been more marketable and TV news has never been more willing to sell it.161 Brian Lamb, a media executive, said, "The strength of this country is that it can stand a lot of strong words as long as we allow a lot of different views." l62 Donnie M. Martin, an author, said, "I committed bank robbery and they put me in prison and that was right Then I committed journalism and they put me in the hole. And that was wrong." 163 Paul McMasters of the Freedom Forum said, "When government agencies shut off access to public meetings and records, they break a pact with the American people—and they put a true democracy in peril." I64 Anne Matthews, reporter and journalism historian, said: Academics are so used to people taking notes and laughing obligingly at their jokes. And they make people disappear all the time by flunking them or denying them tenure. But they can't do that to reporters, which is all the more irritating since they are their major competitors for influencing the secular mind.165 Motion pictures grossed $5.42 billion.166 The National Conference of Commissioners on Uniform State Laws approved its uniform correction of the clarifications of defamation law. The Act is designed to reduce legal costs and protect reputations by encouraging retractions to resolve libel claims without extended litigation. The American Bar Associations endorsed the Act so that it could be sent to state legislatures for possible enactment.

234 / The Beginnings of the 1990s Allen H Neuharth, chairman of the Freedom Forum, said, "Freedom comes at a hell of a price. It is not guaranteed. It is fragile. It must be constandy championed and defended." 167 Jean Otto, an editor, said, "Ourfreedoms,bought by blood by the first Americans and protected with the hves of thousands of others, are forever mortgaged—mortgaged to the will of the American people." 168 Robert Packwood, United States senator said, "This is your press at work, ladies and gentiemen—lying, harassing, doing things that all of you would regard as uncivil, untoward, ungentiemanly." 169 Richardo Pimental, an editor, said, "You can't wrap yourself in God, flag, and apple pie and not expect me to scrutinize your church attendance, your draft record, and your pastry-eating habits." 170 Army General Colin Powell said, "The First Amendment right of free speech is intended to protect the controversial and even outrageous word, and not just comforting platitudes, too mundane to need protection." m Rosalind Resnick, editor and publisher, said, "The most important tools that any journalist possesses are not his computer but between his ears." m Louise Ritchie, a journalism professor, said, "If you look at how we raise our children, generally we try to wring out of them everything that would make them good writers. We crack down on their curiosity, crush out questioning and debate." 173 Warren Rogers, author and editor, said, "People love the unvarnished truth if it's about others and hate it when it's about themselves." l74 Carl T. Rowan, columnist, said, "No group is ever free if it cannot have some fools and scoundrels without everybody in the group being blamed for it." I75 Harry Schwartz, an editor, said that the media claim to be performing a public service, but everybody knows the motives are mercenary and that scandals sell newspapers and build TV audiences. "It is political pornography." m Herb Shayne, business man, said, "The First Amendment guarantees freedom of speech, but not funding of freedom of speech." i77 Richard Smith, news executive, said that the nasty htde secret of TV news, and to a lesser degree, print, is the bias—not to the pohtical left or right—but toward controversy, heat, and emotion.178 Bernard A. Weisberger, historian, said, "Electronic journalism enhances the

1990 Through 1994 / 235 power of the spin doctors, flacks and media consultants to obfuscate and conceal and to clothe a great many naked emperors." 179 Tom Wicker, New York Times columnist, said, "I do not fear we may ultimately lose, or find inhibited, our First Amendment protections, especially freedom of expression, for we Americans are too intolerant of dissent." 180 Garry Wills, a columnist, said that the whole point of free speech is to make ideas exempt from criticism but to expose them to it.181 Judy Woodruff, news anchor, said, "Journalists don't believe the Freedom of Information Act was created to be turned on us as an excuse to hide information." 182

Chapter 16

THE TURBULENT YEAR OF 1995 Freedom of Expression Amy Adler, a civil liberties advocate, said, "work of serious artistic value is always supposed to be protected, no matter how sexually explicit or how offensive some persons might find it." l The American Association of University Professors state in their "Statement on Computers and Academic Freedom" that the principles of academic freedom applicable to student and faculty publications in traditional media apply to student and faculty pubhcation in computer media An article or note posted by a student to a news group is a student publication. In 1995, the American Way reported that there were 338 attempts to ban books and half of these succeeded.2 Charles Barkley, professional basketball player, said, "I think the media are bad, and they try to create controversy. That's the way I think the media work, and I think that's the way they are." 3 Clint Black, of the Institute for Justice in reviewing Nadine Strossen's Defending Pornography: Free Speech, Sex, and the Fight for Women s Rights, said, "The book succeeds as a defense of free expression in a context —sexual expression —where many are tempted to create new exceptions to the First Amendment's absolutist language." Jim Borgman, a cartoonist for the Cincinnati Enquirer, produced an editorial cartoon with the legend, "Sleep tight, the press is always awake."

1995 / 237 VanWyck Brooks, critic and translator said that the American mind is not informed by books, but by newspapers and the Bible.4 William F. Buckley, columnist, said, "They were telling us that free speech protects Deep Throat, and now they are telling us that it protects flag-burning. The hell with them." George E. Bushnell Jr., past president of the American Bar Association, said: The millions of men and women who have put themselves in harm's way in the service of our nation did so to ensure that the rights guaranteed in the Constitution will be available to ourselves and to our progeny. We have an obligation to protect that legacy.5 Senator Robert Byrd said: As purveyors of the news, the press have enormous power to persuade, far greater in fact than does any single politician. It is this very power, unchecked andfree-wheeling,that journalists can no longer ignore and brush aside. There is as much need for the press to be made accountable to the public as there is for elected officials. 6 Cathy Cleaves, an attorney, said that violent hard-core pornography causes harm and it should be regulated.7 Pat Cavanaugh, publisher of the Times-Georgian in Carrollton, said: Never in my career have I witnessed such a farce and such buffoonery in any news media as the trial and coverage coming from California. We choose to refrain from running the inane absurdities of the O J soap opera until the Fat Lady sings.8 President William Clinton said: To those of us who do not agree with the purveyors of hatred and division, I remind you that we havefreedomof speech, too. It is time we stood up and spoke against that kind of reckless speech.9 Anita Creamer, a columnist advises that if you want something to remain off the record, don't say it.10 President William Clinton unveiled a computer-based information service linking the federal government and businesses on the Internet. U.S. Business Advisor offers a Regulatory Assistance Center. Clinton by executive order required that all top secret, secret, and confidential documents 25 years or older be automatically declassified. At the end of 1995, there were as many as 118 proposed amendments to the U.S. Constitution bubbling around the nation. Unfortunately many of these were meddling with the rights in the Bill of Rights and elsewhere in the Constitution.

238 / The Turbulent Year of 1995 Senate majority leader Robert J. Dole said, "Criticism of Hollywood is not a crusade for censorship but a call for good citizenship." n Senator Byron Dorgan said: It is very important to curb the violence depicted in entertainment without infringing on the right to free speech. I don't believe in censorship, and I prefer that we not regulate." n Leonard Downie Jr., a newspaper editor, said, "For presidential candidates, I have to say, the American people should know everything." n Columnist Susan Estrich, said, "The First Amendment protects free expression not because it poses no dangers but because the dangers of censorship are greater."14 Columnist Estrich also said, "The press doesn't exist in America to be liked. But more and more people consider the media to be a part of what's destroying our country." 15 Senator Jim Exon of Nebraska, sponsor of a bill controlling pornography, said: I cannot imagine that the framers of the Constitution intended that pornography, in and of itself, would be protected under the First Amendment. Certainly not for kids. I want to keep the Information Super highwayfromresembling a red light district. This legislation will help stop those who electronically cruise the digital universe to engage children in inappropriate communication, or electronically stalk users of computer networks.16 The FCC decided not to auction the digital spectrum space reserved for broadcasting. The Federal Election Commission authorized a political action committee to use computer networks in fund raising activities. "Newswatch" was primarily an antiNewt Gingrich organization. Laurie W Ford of Worthington, Ohio, said: Rereading the Constitution reveals its gift: a nation of laws. This is hard to appreciate until one travels through countries without rule by law, ballot boxes or freedom of speech and assembly.l7 In the United States, Freedom House rated the U.S. as posting a score of 12 on a 100-scale evaluation with low scores indicating the best record. Monopolization and rising publishing costs continue to threaten editorial freedom in the United States. Newt Gingrich, speaker of the House of Representatives, said, "The news media are the nervous system of a free society." 18

1995 / 239 Ira Glasser of the American Civil Liberties Union said, "The notion of religious hberty is that you cannot be forced to participate in a religious ceremony that's not of your choosing simply because you're outvoted." 19 Margaret Gordon, a journalism professor said that journalists have never agreed to licensing procedures in a strong system of peer-performance monitoring, these are seen as infringements on thefreedomof the press. *° Phil Gramm, a senator seeking the presidency, said, "I never ask for fairness in the media, only mercy."21 Donald Haines of the American Civil Liberties Association said: The bill proposed by Senator Exon, even modified, is clearly unconstitutional. It deprives every current and future user of cyberspace of their privacy and free speechrights.This includes everybody who uses e-mail.22 Donna Rice Hughes, spokesperson for Enough is Enough, an anti-pornography group, said: We're not prudes against pornography over here, and we are proponents offreespeech But unless something like the Exon bdl goes through, there will be an explosion of child pornography. M The Internet site Crayon (Create Your Own Newspaper) allows users to customize a newspaper containing a variety of news services. Columnist Molly Ivins said: If dramas involving sex and violence were inherently bad, that play about the woman who killed her children [Medea ] and the one about the guy who slept with his mom [Oedipus Rex ] would not have been considered great art for the last 2,500 years.24 William B. Ketter, newspaper editor, said; "By nature, American journalists reject the thought of the government defining free speech, no matter how personally offensive the message might be. The First Amendment is considered sacred."25 Judith Krug, director of the American Library Association's Office for Intellectual Freedom, said: Letting children read materials in the library is probably one of the most benign ways to permit young people to explore different ideas. Restricting the kinds of materials that are available in libraries is not going to solve problems. I've never known a book or a magazine to make any girl pregnant. It's not going to hurt the kids to read.26 Bert Lance, now a business executive, said, "Everything is fair game. There's

240 / The Turbulent Year of 1995 nothing private. You can print whatever you want." 27 Betty Ann Laws, in a letter to the editor of the Muncie Star published in the editorial page, wrote that desecrations of the flag are not people who mutilate it but people who wrap themselves in it in fear of dissent. They would impose conformity upon individual freedom of expression. Senator Patrick Leahy said: While maintaining freedom of speech is not without risk, we will have already lost when we adopt censorship and repression. Speech with which we disagree is best met by more speech, by debate, and by sunshine. M The First Amendment is under a state of siege unlike any other time I know of. Never has it looked more bleak or more likely that people would willingly relinquish our precious liberties, said Paul McMasters, ombudsman for the Freedom Forum.29 Patrick D. Maines, president of Media Institute, said: The First Amendment cannot be ignored in our discussions of electronic media regulation—whether the regulation is in the form of legislation or threats of legislation. With increasing amounts of information reaching consumers through the electronic media is very much in the real public interest.30 Newton Minow, television critic and writer, said; "on a par with the atomic bomb, television is the most important invention of our century."31 Marian Miedzian, a violence prevention lecturer, said: Isn't it time to move beyond tired cliches about the First Amendment that ignore the reality of children growing up in an age of advanced technology surrounded by antisocial entertainment that even the most concerned parents cannot control?32 Article I, Section 15, of the Montana state constitution provides that the rights of persons under 18 years of age shall include but not be limited to, all fundamental rights of the Article unless specifically precluded by laws which enhance the protection of such persons. The Newspaper Association of America Foundation and the Freedom Forum launched a campaign and educational curriculum, Talking About Freedom to promote the First Amendment The Freedom Forum added a series of television public service statements related to the campaign. Miguel Perez, a journalist, said that bitter words can have grave consequences. Those who spew them may have First Amendment rights to say them, but they should

1995 / 241 be held accountable for inciting violence.33 A number of state legislatures have addressed the issue of pornography and obscenity on the Internet by regulating against it, even though legal experts insist that many of these laws are unenforceable and will eventually be overturned by the

courts.34

Jeff Rivers, associate editor of the Hartford Courant, said: There's raging cynicism about newspapers. Many people are watching us for our biases, not reading us for the information we provide. Some wouldn't read the newspapers if you paid them because they feel we've injured them. Every time newspapers fail to recognize the fundamental humanity of all people, we seem ignorant at best, and evil at worst. Our ignorance costs us readers.35 Carl T. Rowan, a columnist, said "The library is the temple of learning, and learning has liberated more people than all the wars in human history."36 More than 800,00 U.S. spy satelhte images taken during the Cold War have been declassified under an executive order by President Clinton. The Senate and the House passed legislation requiring television manufacturerers to install a V-chip so parents could block objectionable material. Not only is the technology not fully developed, but how to encode programs or why or by whom has yet to be developed. Tom Shales, a columnist, said: Public TV shouldn't be destroyed in the name of a political fad or a personal whim. Leave MacNeil and Lehrer and Kermit and the Cookie Monster and the Three Tenors and Mister Rogers the hell alone.3? Al Sharpton, social activist, said: I have a problem as a parent with some [rap] lyrics, but I have even more of a problem with the right wing using this concern as an excuse to usher in censorship. That is not right, and it will infringe on our First Amendment rights.38 Senator Paul Simon said: The Senate's V-chip amendment is well-intended, but the wrong medicine. There are many things the government can do well, but we should not want government to make decisions on what we see or hear or read.39 Thomas Sowell, an economist and author said: Freedom has never meant that some precious anointed can do whatever

242 / The Turbulent Year of 1995 they please and that no one else has the freedom to react to it. That is notfreedombut bigotry. Bigotry means claiming rights for yourself that you want to deny to others. What too many in the media call 'freedom' is the bigotry of the anointed. *° Sylvester Stallone, an actor frequentiy seen in action movies, said: To express ourselves in goodfilms,we also have to put up with the crap and violence and stupidity of the kind of films that are put out by guys who are pure exploiters.41 Nadine Strossen of the American Civil Liberties Union, said: We must reaffirm the central importance of freedom of expression—our right to read, think, speak, sing, write, paint, dance, dream, photograph, film and fantasize as we wish.42 Leonard R. Sussman of Freedom House said: The Internet should be protected by the First Amendment no less than a newspaper or television program. To ban smut would require monitoring of the information flow. By whom? Government? That's unconstitutional invasion of privacy. By private gate-keepers? That encourages censorship and blackmail. Instead, educate for decency.43 Bruce Taylor of the National Law Center for Children and Families, said. The only people that are against anti-smut legislation are people who are against any government regulation, or who want to distribute sexual material. Adults don't have the right to distribute obscenity among themselves and they should be liable if a minor downloads it. u Telephone companies began installation of fiber optic cables in selected large cities in 1985 with die objective of having this multi-dimensional communications system in operation throughout the nation in the late 1990s. Congress passed legislation, later signed into law by the President to deregulate cyber and telephonic activities during the remaining years in the century. It has been challenged by twenty organizations who won a temporary injunction in a federal court to keep it from going into effect until a full hearing is conducted or higher courts take action. Cal Thomas, columnist and talk show host, said: When students and parents complain they are being force fed antireligious sentiments, they are met with the mantra of the pagan left; that this is the price we must pay for a healthy First Amendment.45 An editorial in the Waco Tribune-Herald in Texas contended that flag burning mocks the veryfteedcanof expression that makes dissent possible in the shadow of the flag.46

1995 / 243 Jim Warren, an electronic journalist, said, "Each medium has always had to fight the First Amendment batdes anew. I fearfirstcontrol by the government and then by monopoly powers."47 People who became angered at libraries organized as Family Friendly Libraries to protect everyonefromwrong books,films,periodicals, or ideas. The group plans a national campaign to convince librarians to reject the anti-censorship Library Bill of Rights of the American Library Association. *

Chapter 17

SUPREME COURT SELECTED CASES 1812 THROUGH 1995 There is an advantage to following the efforts of the Supreme Court in a chronological manner to understand its applications of the First and Fourteenth Amendments in twentieth-century America. But there is a disadvantage also because it is possible to overlook major decisions having much greater impact than others more easily located. For this chapter hundreds of decisions were examined and 252 were selected depicting the nation's journey toward freedom of expression. As events and Supreme Court Justices changed, the journey has wavered along the way. The reader can assess which end the pendulum exists upon and what could be better or worse. The journey really is a young one. The First Amendment became a reality of constitutional law in 1791 when the Bill of Rights was ratified. From 1776 through 1791, a fifteen year period, the nation had no guaranteed freedom of speech. For the next 80 years First Amendment protections had a bumpy road, made that way by political clashes and wars. Possible improvements appeared in the 1868 Fourteenth Amendment with its umbrellas of due process and equal protection of the law, but the Supreme Court, caught up in the enthusiasm of an expansive economy based on property rights, virtually eliminated the Amendment from consideration of free expression in 1873 in its Slaughterhouse case (111 U.S. 746). This blockage continued for more than 80 years and made possible the era of Comstock censorship of literature, censorship during World War I, and, the Palmer raids against the radicals. This began to change in 1925 when the Gitiow case reopened the umbrella of the Fourteenth Amendment on First Amendment issues. This means true freedom of expression is probably no more than 70 years old. The adolescence of this freedom began in the mid-1960s when college and high school students erupted in student voices. So America is now a thirty-year-old free expression and middle-aged speaker. Because of this slow progress the Supreme Court paid little attention to the First

1812 Through 1995 / 245 Amendment until rather recently. Actually few brought such matters to the Court's htigation until well after World War I. In contrast, the Court has found itself gready involved in free press and free speech cases for the past 30 years. The reader can trace this wavering evolution by examining the 252 Supreme Court decisions selected for inclusion in this book. Perhaps they will intrigue readers to seek further detail and other cases by referring to sources mentioned in Chapter 1 and in the bibliography. Here are the selected decisions. 1812 United States v. Hudson and Goodwin. 3 Lawyers' Edition, United States Supreme Court Reports 1812. P. 29. (This decision ended federal court jurisdiction over common law sedition and criminal cases.) 1876 United States v. Cruickshank. 92 U.S. 542. Chief Justice Morrison R. Waite explained that: Freedom of speech and freedom of the press [are] rights deemed attributes of national citizenship of the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. 1878 Ex parte Jackson. 96 U.S. 727. Justice Stephen F. Field wrote for the court that: Liberty of circulating is as essential to that freedom [of the press] as liberty of publishing: indeed, without the circulation, the publication would be of htde value. In excluding various articles from the mails, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people, but to refuse its facilities for the distribution of matter deemed injurious to the public morals [such as information on abortion, contraceptives, etc.] 1907 Patterson v. Colorado. 205 U.S. 453. Justice Oliver Wendell Holmes wrote in the majority opinion that: The pubhcation likely to reach the eyes of a jury, declaring a witness in a pending cause a perjurer, would be none the less a contempt that it was true. The theory of our system is that the conclusions to be reached will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print. 1913 Lewis Publishing Company v. Morgan. 229 U.S. 301.

246 / Supreme Court Selected Cases Chief Justice Edward Douglas White wrote that: We are concerned solely with the right or behalf of the publishers to continue to enjoy great privilege and advantages at the public expense—arightgiven them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded [in the 1912 Postal Act]. 1915 Mutual Film Corp. V. Ohio. 371 U.S. 230. Justice Joseph McKenna wrote that since motion pictures were an entertainment media business they were not protected by the First Amendment and could be censored. 1919 Abrams v. United States. 250 U.S. 616. Justice John Hessin Clarke wrote that: "Publications calling for workers of the world to awake and destroy capitalism contained a definite threat of armed rebellion." Frohwerk v. United States. 249 U.S. 204. Justice Oliver Wendell Holmes wrote that: On the record it is impossible to say that it might not have been found that the circulation of the paper [urging young men to refiise to serve in the military] was in quarters where a little breath would be enough to kindle a flame. Schenck v. United States. 249 U.S. 51. Justice Oliver Wendell Holmes wrote that: We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Toledo Newspaper Company v. United States. 247 U.S. 401. Chief Justice Edward Douglas White wrote that: The safeguarding of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions. However complete is the right of the press to state public things and discuss them, that right, as every

1812 Through 1995 / 247 other right enjoyed in human society, is subject to the restraints which separate right from wrongdoing. 1920 Gilbert v. State of Minnesota. 245 U.S. 325. Comment made by Justice Louis O. Brandeis: "Like the course of the heavenly bodies, harmony in national life is a resultant of the struggle between contending forces. Infrankexpression of conflicting opinion lies the greatest promise of wisdom in government action; and in suppression lies ordinarily the greatest peril." Pierce v. United States. 252 U.S. 239. Comment made by Justice Louis D. Brandeis: "I cannot believe that the liberty guaranteed by the Fourteenth Amendment included only the liberty to acquire and enjoy property." 1921 Milwaukee Social Democratic Publishing Company v. Burleson. 255 U.S. 407. Chief Justice John Hessin Clarke wrote that: Freedom of the press may protect criticism and agitation for modification or repeal of laws, but it does not extend to protection of him who counsels and encourages the violation of the law as it exists. The Constitution was adopted to preserve our government, not to serve as a protecting screen for those who, while claiming its privileges, seek to destroy it. 1925 Gitlow v. New York. 226 U.S. 652. (Dissents in the decision made by Chief Justice Oliver Wendell Holmes and Justice Brandeis led to inclusion of the First Amendment provisions within the umbrella protections of the 1868 Fourteenth Amendment.) Justice Edward Terry Sanford wrote for the majority that: It was not an arbitrary or unreasonable exercise of the police power of the state, unwarrantably infringing the freedom of speech or press. We must and do sustain its constitutionality. 1926 Connally v. Central Construction Company. 269 U. S. 365. The Court ruled that any rule which requires or forbids the doing of an act in terms so vague that persons of common intelligence would have to guess as to its meaning and could easily disagree with other persons as how to apply it violates the essential nature of due process guarantee of the Fourteenth Amendment.

1927 Fiske v. Kansas. 274 U.S. 380.

248 / Supreme Court Selected Cases The Court ruled thatfreedomof speech and the press are among the fundamental rights and hberties protected by the due process clause of the Fourteenth Amendment. Whitney v. California. 274 U.S. 357. Comments made by Justice Louis Brandeis: Fear of serious injury cannot alone justify suppression of free speech and assembly. Man feared witches and burned women. It is the function of speech tofreemenfromthe bondage of their fears. Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. 1928 Casey v. United States. 276 U.S. 413. The Court indicated that "the greatest danger to liberty lurks in the insidious encroachment by men of zeal, well-meaning but without understanding." 1929 United States v. Schwimmer. 279 U.S. 644. Chief Justice Oliver Wendell Holmes explained his minority opinion thus: If there is any principle of the constitution that more imperatively calls for attachment more than any other, it is the principle of free thought—not for free thought or those who agree with us, but freedom for the thought we hate. 1931 Near v. Minnesota. 283 U.S. 697. Chief Justice Charles Evans Hughes wrote that: Charges of reprehensible conduct, and in particular of official malfeasance, unquestionable create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. Stromberg v. California. 283 U.S. 357. Chief Justice Charles Evans Hughes wrote that: The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which, upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.

1812 Through 1995 / 249 United States v. Macintosh. 283 U.S. 605. Justice George Sutherland wrote that: There are few finer or more exalted sentiments than that which finds expression in opposition to war. Peace is a sweet and holy thing, and war is hateful and an abominable thing to be avoided by any sacrifice or concession that a free people can make. But thus far mankind has been unable to devise any method of indefinitely prolonging the one or of entirely abolishing the other. To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances;freedomof press may be curtailed to preserve our military plans and movements from the knowledge of the enemy. 1933 Shuck v. Carroll Daily Herald. 247 U.S. 813. The Court ruled that, since newspapers are strictiy private enterprises, the publishers have a right to publish whatever advertisements they desire and to refuse whatever advertisements they do not want to publish. Since broadcast stations are not common carriers they too do not have to accept whatever is offered to them for broadcast. 1936 Grossjean v. American Press Company. 297 U.S. 233. Justice George J. Sutherland wrote that: It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press. It is a deliberate and calculated devise in the guise of a tax to limit the circulation of information to which the public is entided in virtue of the constitutional guaranties. A free press stands as one of the greatest interpreters between the government and the people. To allow it to be fettered is to fetter ourselves. Herndon v. Lawry. 301 U.S. 242 The Court rejected the bad tendency of prohibited speech because state power to abridge expressions is limited and is to be used only when there was a reasonable fear of danger to organized government. Palko v. State of Connecticut. 302 U.S. 319. Justice Benjamin N. Cordozo explained the decision thus: "Freedom of expression is the matrix, the indispensable condition, of nearly every other freedom." 1937

250 / Supreme Court Selected Cases Associated Press v. NLRB. 301 U.S. 103. Justice Owen J. Roberts wrote that: The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and privileges of others. He must answer for libel. He may be punished for contempt of court. He is subject to the antitrust laws. Like others he must pay equitable and nondiscriminatory taxes on his business. The regulation has no relation whatever to the impartial distribution of the news. DeJonge v. State of Oregon. 299 U.S. 353. Chief Justice Charles Evans Hughes wrote that: Therightof peaceful assembly is a right cognate to those of free speech andfreepress and is equally fundamental. These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. 1938 Lovell v. City of Griffin. 303 U.S. 444. Chief Justice Charles Evans Hughes wrote that: The [Griffin] ordinance strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. Legislation of the type of the ordinance would restore the system of license and censorship in its baldest form. The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. The ordinance cannot be saved because it relates to distribution and not to publication. 1939 Hague v.C.I.O. 307 U.S. 496. The Court ruled that the privilege of a citizen to use the streets and parks for communication of views on rational questions may be regulated in the interest of all; and it must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order, but it must not, in any guise of regulation be abridged or denied. Schneider v. Irvington and the State of New Jersey. 308 U.S. 147. Justice Owen J. Roberts wrote that:

1812 Through 1995 / 251 The purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a personrightfullyon a pubhc street from handing hterature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets. 1940 Cantwell v. Connecticut. 310 U.S. 296. Justice Owen J. Roberts wrote that: The First Amendment embraces two concepts—freedom to believe and freedom at act. The first is absolute, but, in the nature of things, the second cannot be. Cantwell's communication raised no clear and present menace to public peace and order. Carlson v. California. 310 U.S. 102. Justice Frank Murphy wrote that: The carrying of signs and banners, no less than the raising of a flag, is a natural and appropriate means of conveying information on matters of public concern. Ford Motor Company v. National Labor Relations Board. 312 U.S. 689. The Court pointed out that the right to hold views upon any and all controversial questions, to express such views, and to disseminate them to persons who may be interested is fully guaranteed. Minersville School District v. Gobitis. 310 U.S. 586. The Court upheld a school rule that students had to salute the flag as they said the pledge of allegiance, even though pupils had religious beliefs opposing the salute. Thornhill v. Alabama. 310 U.S. 87. Justice Frank Murphy wrote that: Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread pohtical and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion. Abridgement of freedom of speech and of the press impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the process of popular government. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that

252 / Supreme Court Selected Cases constitutes the danger to freedom of discussion. 1941 AFLv. Swing. 312 U.S. 319. Justice Felix Frankfurter wrote that: The right to free discussion is to be guarded with a jealous eye. The right of free communication cannot be mutilated by denying it to workers in a dispute with an employer, even though they are not in his employ. Bridges v. California Times-Mirror Company v. Superior Court of Los Angeles. 314 U.S. 252. Justice Hugo L. Black wrote that: Free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them. The word 'trial" connotes decisions on the evidence and arguments properly advanced in open court. Legal trials are not like elections, to be won through the use of meeting-hall, radio, and the newspaper. (It was the unanimous view of the court that the Times editorials had a negligible influence on the course of justice and the fine for contempt was an "impermissible exercise of the state's power.") Milkwagon Drivers Union of Chicago v. Meadowmoor Dairies. 312 U.S. 286. Justice Felix Frankfurter wrote that: It must never be forgotten that the Bill of Rights was the child of Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Nye v. United States. 313 U.S. 33. Justice William O. Douglas wrote that: The Supreme Court had misread the language and history of the Congressional Act in its ruling against the Toledo News-Bee must be overruled Nye's condemned conduct was not within the vicinity of the Court in any normal meaning of the term. 1942 Chaplinsky v. New Hampshire. 315 U.S. 568. Justice Frank Murphy wrote that: There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those

1812 Through 1995 / 253 which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. The English language has a number of words and expressions which by general consent are "fighting words" when said without a disarming smile. Valentine v. Chrestensen. 316 U.S. 52. Justice Owen J. Roberts wrote that: The Court imposes no restraint on the government as respects purely commercial advertising. The affixing of the protest against official conduct to the advertising circular was with the intent of evading the prohibition of the ordinance. If the evasion were successful, every merchant who desires to broadcast advertising leaflets in the streets need only append a civic appeal, or a moral platitude, to achieve immunity from the law's command. 1943 Douglas v. City of Jeanette. 319 U.S. 157. The Court said that freedom of speech and freedom of the press are not the subjects of a direct constitutional grant, but they are recognized constitutionally and confirmed as attributes of hberty incident to all persons under the Constitution and the law of the United States regardless of their citizenship, and they are secured by the First Amendment against abridgement by Congress and by the Fourteenth Amendment against deprivation by a state without due process of law. Follett v. McCormack. 321 U.S. 573. The Court pointed out that under the First and Fourteenth Amendments freedom of the press, freedom of speech, and freedom of religion are in a preferred position. Jamison v. Texas. 318 U.S. 413. Justice Hugo L. Black wrote that: One who is rightfully on a street which the State has left open to the public carries with him there as elsewhere the constitutional rights to express his views in an orderly fashion. The State may not prohibit the distribution of handbills in the pursuit of a clearly religious activity merely because the handbills invite the purchase of books for the improved understanding of the religion or because the handbills seek in a lawful fashion to promote the raising of funds for religious purposes. Jones v. Opelika. 319 U.S. 103. Justice William O. Douglas wrote that: Freedom of speech, freedom of the press and freedom of religion are available to all, not merely to those who can pay their own way. It is a

254 / Supreme Court Selected Cases license tax—aflattax imposed on the exercise of a privilege granted by the Bill of Rights. The taxes imposed by this ordinance can hardly help but be as severe and telling in their impact on the freedom of the press and religion as the "taxes on knowledge" at which the First Amendment was partly aimed. Largent v. State of Texas. 318 U.S. 418. The Court ruled that city ordinances authorizing the mayor to determine permits to distribute pamphlets and handbills were unconstitutional. Martin v. City of Struthers. 319 U.S. 141. Justice Hugo L. Black wrote that: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be freely preserved. Murdoch v. Jeannette, Pa. 319 U.S. 105. Justice William O. Douglas wrote that: Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying, or distasteful. West Virginia Board of Education v. Barnette. 319 U.S. 624. Justice Robert H. Jackson wrote that: One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. The action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to reserve from all official control. 1945 Adamson v. State of California. 332 U.S. 46. The Court pointed out that it is not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. Associated Press v. United States. 326 U.S. 1. Justice Hugo L. Black wrote that: The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerftd reasons to the contrary. Surely a command that the government itself shall not impede

1812 Through 1995 / 255 the free flow of ideas does not afford non-governmental combinations of a refuge if they impose restraints upon that constitutionally guaranteed freedom Freedom to pubhsh means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests. Thomas v. Collins. 323 U.S. 516. Justice Wiley Rudedge wrote that: The First Amendment gives freedom of mind the same security as freedom of conscience. And the rights of free speech and a free press cannot be confined to any field of human interest. The idea is not sound that the First Amendment's safeguards are wholly inapplicable to business and economic activity. When served with the order [Thomas] had three choices: (1) to stand on his right and speak freely; (2) to quit, refusing entirely to speak; (3) to trim, and even risk the penalty. He chose thefirstalternative. We think he was within his rights in doing so. 1946 Hannegan v. Esquire. 327 U.S. 146. Justice William O. Douglas wrote that: The controversy is not whether the magazine publishes "information of a public character" or is devoted to "hterature" or to the "arts." It is whether the contents are "good" or "bad." To uphold the order of revocation would, therefore, grant the Postmaster General a power of censorship. Marsh v. Alabama. 326 U.S. 501. Justice Hugo L. Black wrote that: Ownership does not mean absolute dominion. The more an owner, for his own advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Whether a company or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. Oklahoma Press Publishing Company v. Walling. 327 U.S. 186. Justice Wiley Rudedge wrote that: Coloring almost all of the publishers positions is a primary misconception that the First Amendment knocks out any possible application of the Fair Labor Standards Act to the business of publishing and distributing newspapers. The Amendment does not forbid this or other regulation which ends in no restraint upon

256 / Supreme Court Selected Cases expression or in any other evil outiawed by its terms and purposes. The Act's purpose was to place publishers of newspapers upon the same plane with other businesses. Pennekamp v. Florida. 328 U.S. 331. Justice Stanley Reed wrote that: Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. The danger under the record [in this case] to fair judicial administration has not the clearness and immediacy necessary to close the door of permissible public comment. When that door is closed, it closes all doors behind it. Tucker v. Texas. 326 U.S. 517. Justice Hugo L. Black wrote that: "Certainly neither Congress nor federal agencies may abridge freedom of press and religion safeguarded by the First Amendment." 1947 Craig v. Harney. 331 U.S. 367. Justice Wlliam O. Douglas wrote that: A trial is a public event. What transpires in the court room is public property. There is no special perquisite of the judiciary which enables it, as distinguishedfromother institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. The news articles were by any standard an unfair report of what transpired. But inaccuracies in reporting are commonplace. Certainly a reporter could not be laid by the heels for contempt because he missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case. [The editorials] contained strong, intemperate language, unfair criticism, but a judge may not hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him. United Public Workers of America v. Mitchell. 330 U.S. 75. Justice Stanley F. Reed wrote that: The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery. It is only partisan political activity that is interdicted. 1948 Donaldson v. Read Magazine. 333 U.S. 1788. Justice Hugo L. Black wrote that: None of our recent cases provide the slightest support for a contention

1812 Through 1995 / 257 that the constitutional guarantees of freedom of speech and freedom of press include completefreedom,uncontrollable by Congress, to use the mails for perpetration of swindling schemes. A contention cannot be seriously considered which assumes that the freedom of the press includes therightto raise money to promote circulation by deception of the public. Saia v. New York. 334 U.S. 558. Justice WiUiam O. Douglas wrote that: Annoyance at ideas can be cloaked in annoyance at sound. The power of censorship inherent in this type of ordinance reveals its vice. Winters v. New York. 333 U.S. 507. Justice Stanley Reed wrote that a law making it a misdemeanor to distribute or sell pubhcations featuring crime news and pictures of bloodshed, lust and crime was void because it was vague and indefinite. 1949 Giboney v. Empire Storage and Company. 336 U.S. 490. Justice Hugo L. Black wrote that: Nothing in the constitutional guaranties of speech or press compels a state to apply or not to apply its anti-trade restraint law to groups of workers, businessmen, or others. We reject the contention that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. Kovacs v. Cooper. 336 U.S. 77. Justice Stanley Reed wrote that: There is no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers. We think that the need for reasonable protection in the homes or business houses from the disturbing noises of vehicles equipped with such sound amplifying devices justifies the ordinance. Terminello v. Chicago. 337 U.S. 1. The Court wrote that: Possibly the highest function of free speech is to invite dispute, induce a situation of unrest, create dissatisfaction with undesirable conditions, or stir people to anger. For such utterances, Terminello or anyone else, cannot be punished Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsetding effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and

258 / Supreme Court Selected Cases present danger of a substantive evil. Williamson v. United States. 95 L. Ed. 1379. Justice Robert H Jackson wrote that the essence of constitutional freedom of the press and of speech is to allow more hberty than the good citizen will take. An indirect or subde curtailment of the press is practically the same as direct and overt limitation and is equally unconstitutional. 1950 American Communications Association (C.I.O.) V. Douds. 339 U.S. 182. Chief Justice Fred M. Vinson wrote that: It has long been established that freedoms [in the First Amendment] are dependent upon the power of constitutional government to survive. The right of the pubhc to be protectedfromevils of conduct, even though the First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. The legislative judgment that interstate commerce must be protectedfroma continuing threat of strikes is a permissible one in this case. 1951 Breard v. Alexander. 341 U.S. 622. Justice Stanley Reed wrote that: Subscriptions may be made by anyone interested in receiving the magazines without the annoyance of house-to-house canvassing. We think the communities that have found these methods of sale obnoxious may control them by ordinance. It would be a misuse of the great guarantees offreespeech andfreepress to use these guarantees to force a community to admit the solicitors of publications to the home premises of its residents. Dennis v. United States. 341 U.S. 494. Justice Felix Frankfurter wrote that Congress had the power to enact the Smith Act which oudawed conspiracies, especially communist ones, to overthrow the government by force or violence. Feiner v. New York. 340 U.S. 315. Chief Justice Fred Vinson wrote that: This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Kunz v. New York. 340 U.S. 290. Chief Justice Fred Vinson wrote that: An ordinance which gives an administrative officer discretionary power to control in advance the right of citizens to speak on religious matters

1812 Through 1995 / 259 on the streets of New York is clearly invalid as a prior restraint on the exercise of First Amendment rights. Lorain Journal Company v. United States. 342 U.S. 143. Justice Harold H. Burton wrote that: The publisher suggests that the injunction amounts to a prior restraint upon what it may publish. We find in it no restriction upon any guaranteed freedom of the press. The injunction applies to a publisher what the law applies to others. The Times-Mirror Company v. Superior Court of California. 314 U.S. 252. The Court said: The First Amendment does not speak equivocally. It prohibits any law abridging freedom of speech or of the press. It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. 1952 Beauharnais v. Illinois. 343 U.S. 250. Justice Felix Frankfurter wrote that: Libelous utterances not being within the area of constitutionally protected speech, we find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. It would be arrant dogmatism for us to deny that the Illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and rehgious group to which he willy nilly belongs, as on his own merits. Burstyn v. New York. 343 U.S. 495. Justice Tom C. Clark wrote that: That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures. We conclude that expression by means of motion pictures is included within the guaranty of the First Amendment. 1953 United States v. Rumley. 345 U.S. 41 Justice Wilham O. Douglas wrote, after the court had vacated an order requiring Mr. Rumley to submit a list of subscribers to literature of the Committee for Constitutional Government, that: A requirement that a publisher disclose those who buy his books, pamphlets or papers is indeed the beginning of surveillance of the press.

260 / Supreme Court Selected Cases If the lady from Toledo can be required to disclose what she read yesterday, and what she will read tomorrow, fear will take the place of freedom in the libraries, bookstores, and homes of the land. 1957 Alberts v. California. 354 U.S. 476. Justice William Brennan wrote that: The question is whether obscenity is utterance within the area of protected speech and press. Expressions found in numerous opinions [and in 20 state obscenity laws] indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Alexander v. United States. 509 U.S. 125. The Court allowed apphcation of the RICO confiscation law to be used in seizing assets of an obscene book dealer. Butler v. Michigan. 352 U.S. 380. Justice Felix Frankfurter wrote that: The enactment [of section 343 of the Michigan Penal Code] is to reduce the adult population of Michigan to reading only what is fit for children. Peck v. Tribune Company 214 U.S. 185. The Court pointed out that to inhibit the freedom of thought and association of newspapers is to infringe upon the freedom of the press. Roth v. United States. 345 U.S. 512. In his dissenting opinion, Justice William O. Douglas said the community censorship authorized in this decision of obscene materials was one of its worst forms. Sweezy v. State of New Hampshire. 354 U.S. 234. Chief Justice Earl D. Warren wrote that: Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. Watkins v. United States. 354 U.S. 178. Chief Justice Earl D. Warren wrote that: Clearly, an investigation is subject to the command of the First Amendment. The First Amendment may be invoked against infringement of the protected freedoms by law or by law-making. There is no congressional power to expose for the sake of exposure. The pubhc is, of course, entitied to be informed concerning the workings of

1812 Through 1995 / 261 its Government That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals. Yates v. United States. 354 U.S. 298. The Court pointed out that advocacy of abstract ideas is protected by the First Amendment, but that advocacy of action is not. 1958 Spei r v. Randall. 357 U.S. 513. Justice Hugo L. Black wrote that: California, in effect, has imposed a tax on belief and expression. A levy of this nature is wholly out of place in this country. I believe it constitutes a palpable violation of the First Amendment. Loyalty oaths tend to stifle all forms of unorthodox or unpopular thinking or expression—the kind of thought and expression which has played such a vital and beneficial role in the history of this Nation. 1959 Barenblatt v. United States. 345 U.S. 854. In his dissenting opinion, Justice Hugo L. Black wrote that the First Amendment means what it said. The First Amendment says in no equivocal language the Congress shall pass no law abridging freedom of speech, press, assembly, or petition. The interest of the people [lies] in being able to join organizations, advocate causes, and make political mistakes without being subjected to government penalties. Farmers Educational and Carpenters Union v. WDAY 360 U.S. 525. The Court ruled that radio and television stations could not be compelled to broadcast libelous statements and then be required to pay libel damages for those statements. Kingsley v. New York. 360 U.S. 684. Justice Potter Stewart wrote that: The First Amendment guarantee is not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing. Smith v. California. 361 U.S. 147. The Court decided that a bookseller could not be punished for having one obscene book since it woul be impossible for him to know the contents of all the books in his store.

262 / Supreme Court Selected Cases 1960 Bates v. City of Litde Rock. 361 U.S. 516. The Court pointed out that it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the due process clause of the Fourteenth Amendment from interference by the states. Smith v. California. 361 U.S. 147. Justice William J. Brennan wrote that: If the bookseller is criminally liable without knowledge of the contents, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Talley v. California. 362 U.S. 60. Justice Hugo L. Black wrote that: Anonymity has sometimes been assumed for the most constructive purposes. Identification and fear of reprisal might deter perfectiy peaceful discussions of public matters of importance. The ordinance is void in its face. 1961 Irvinv.Dowd. 366 U.S. 717 Justice Tom C. Clark wrote that: It is not required that the jurors be totally ignorant of the facts and issues involved. Here the buildup of prejudice is clear and convincing. Konigsberg v. State Bar of California. 366 U.S. 36. Justice John Marshall Harlan wrote that: We reject the view that freedom of speech and association, as protected by the First Amendment, are absolute. This Court has consistently recognized ways in which constitutionally protected speech is narrower than an unlimited license to talk. This Court has recognized the legitimacy of a statutory finding that membership in the Communist Party is not unrelated to the danger of use for such illegal ends of powers given for limited purposes. Times Film Corporation v. Chicago. 365 U.S. 43. Justice Tom C. Clark wrote that: Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. That position is founded upon the claim of absolute privilege against a prior restraint under the First Amendment—a claim without sanction.

1812 Through 1995 / 263 1962 Engelv.Vitale.370U.S.421 The Court ruled that state-prescribed prayer in pubhc schools is unconstitutional. Manuel Enterprises v. Day. 370 U.S. 478 The Court ruled that content which was patendy offensive in three magazines to some persons and the pictures might be unpleasant and uncouth, the magazines were not obscene and could be mailed. 1963 Edwards v. South Carolina. 372 U.S. 229. Justice Potter Stewart wrote that: The Fourteenth Amendment does not permit a state to make criminal the peaceful expression of unpopular views. NAACP v. Button. 371 U.S. 415 Justice William J. Brennan wrote that: The First Amendment protects vigorous advocacy, certainly of lawful ends, against governmental intrusion. Litigation, a means for achieving the lawful objectives of equality of treatment by all governments for members of the Negro expression is a form of political expression. 1964 Garrison v. Louisiana. 379 U.S. 64. Justice William J. Brennan wrote that: The New York Times rule [on libel] is not rendered inapplicable merely because an official's private reputation, as well as his pubhc reputation, is harmed Anything which might touch on an official's fitness for office is relevant. Jacobellis v. Ohio. 378 U.S. 184. Justice Wilham J. Brennan wrote that: It has been suggested that the community standards of the Roth test implies a determination of the constitutional question of obscenity in each case by the standards of the particular local community from which the case arises. We affirm that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard. It is a national constitution we are expounding. New York Times v. Sullivan. 376 U.S. 254. Justice William J. Brennan wrote that: The allegedly libelous statements do not forfeit First Amendment protection because they were published in the form of a paid advertisement Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who

264 / Supreme Court Selected Cases would give voice to pubhc criticism is an atmosphere in which the First Amendmentfreedomscannot survive. We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, or sometimes unpleasantly sharp attacks on government and public officials. Railroad Trainmen v. Virginia Bar. 377 U.S. 1 Justice Hugo L. Black wrote that: The First Amendment guarantees give railroad workers the right to gather together for the lawful purpose of helping and advising one another. The right to advise concerning the need for legal assistance is an inseparable part of this constitutionally guaranteed right. 1965 Ashtonv. State of Kentucky. 384 U.S. 195. The Court said that afimctionof free press under our system is to invite dispute. Speech is often provocative and challenging. Cox v. Louisiana. 377 U.S. 536. Justice Arthur J. Goldberg wrote that: There can be no doubt that [constitutional safeguards] embrace the fundamental conception of a fair trial, and they exclude influence or domination by either a hostile orfriendlymob. There is no room at any stage ofjudicial proceedings for such intervention; mob law is the very antithesis of due process. We hold that this statute on its face is a valid law dealing with conduct subject to regulation. Estes v. Texas. 381 U.S. 532. Justice Tom C. Clark wrote that: We start with the proposition that it is a "public trial" that the Sixth Amendment guarantees to the "accused." While maximum freedom must be allowed the press in carrying on this important function [covering court proceedings, etc.] in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. All [reporters] are entitled to the same rights as the general public. The newspaper reporter is not permitted to bring his typewriter or printing press [to the courtroom]. When the advances in these arts permit reporting by printing press or by television without their present hazards to a fair trial we will have another case. Reporters of all media are plainly free to report whatever occurs in open court through their respective media. Freedman v. Maryland. 380 U.S. 51. Justice William J. Brennan wrote that:

1812 Through 1995 / 265 The licensing procedure must assure a promptfinaljudicial decision, to maximize the deterrent effect of an interim and possibly erroneous denial of a permit. A non-criminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. Griswoldv. State of Connecticut. 381 U.S. 479. The Supreme Court pointed out that the First Amendment protects the right to speak and print and also the rights to distribute, receive, read, teach, assume, think, and imagine. The idea that the First Amendment has a penumbra wherein privacy is protected from governmental intrusion was advanced. Lamont v. United States. 381 U.S. 301. Justice William O. Douglas wrote that: The addressee in order to receive his mail must request in writing that it be delivered. This amounts to an unconstitutional abridgement of the addressee's First Amendment rights. The Act requires an official act [returning the reply card] as a limitation on the unfettered exercise of the addressee's rights. Zemelv. Rusk. 381 U.S. 1. Chief Justice Earl Warren wrote that: The prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information. 1966 Adderley v. Florida. 385 U.S. 39. Justice Hugo L. Black wrote that: The assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please is rejected. Ginzburg v. United States. 383 U.S. 463. Justice William J. Brennan wrote that: The fact that each of these pubhcations was created or exploited entirely on the basis of appeal to prurient interests strengthens the conclusion that the transactions were sales of illicit merchandise, not sales of constitutionally protected matter. Mills v. Alabama. 384 U.S. 214.

266 / Supreme Court Selected Cases Justice Hugo L. Black wrote that: No test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election. Sheppard v. Maxwell. 384 U.S. 333. Justice Tom C. Clark wrote that: Bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures. Rosenblatt v. Baer. 383 U.S. 75. Justice William J. Brennan wrote that: States have developed definitions of "public official" for local administrative purposes, not the purposes of a national constitutional protection. 1967 Curtis v. Butts. 383 U.S. 130. Justice John Marshall Harlan wrote that: In Butts, the evidence is ample to support a finding of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. In contrast, the dispatch which concerns us in Walker was news which required immediate dissemination. The AP received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. InreGault.387U.S. 1 The Court ruled that even juveniles are entitled to due process as provided by the Fourteenth Amendment. Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. Gilmore v. James. 389 U.S. 572. The Court pointed out thatrightsunder the First Amendment are not absolute, but it is only when the exercise of these rights threatens a clear and present danger to a substantial state interest that the state is justified in curtailing them. Keyishian v. Regents. 385 U.S. 589. Justice William J. Brennan wrote that:

1812 Through 1995 / 267 Our experience under the Sedition Act of 1798 taught us that dangers fatal to First Amendment freedoms inhere in the word "seditious." And the word "treasonable" if left undefined is no less dangerously uncertain. Academic freedom is a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy on the classroom. Redrup v. New York. 386 U.S. 767. The Supreme Court reversed 31 earlier convictions for obscenity in per curain rulings. Time v. Hill. 385 U.S. 374. Justice Wilham J. Brennan wrote that: The constitutional protection for speech and press preclude the application of the New York statute to redress for false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth. United Mine Workers of America v. Central Magazine Sales. 389 U.S. 217. The Court said that the right to assemble peaceably and the right to petition for redress of grievances are intimately connected in origins and purpose with the right offreespeech andfreepress under the First Amendment. Even though these rights are not identical, they are inseparable. United Steelworkers v. American Manufacturing Company. 363 U.S. 564. The Court pointed out that the First Amendment protects the right of persons to distribute printed materials on the street. Persons can be punished for littering the street, but prior restraint of distribution cannot be imposed simply because of the possibility of littering. Walker v. Associated Press. 388 U.S. 130. The Court ruled that denying public officials the right to recover for libel relating to their public acts except where they can prove actual malice applies also to public figures who are not public officials. 1968 Amalgamated Food Employees v. Logan Valley Plaza. 391 U.S. 308. Justice Hugo L. Black wrote that: These pickets do have a constitutional right to speak about Weis' refusal to hire union labor, but they do not have a constitutional right to compel Weis to furnish them a place to do so on its property. Midwest Television v. Southwestern Cable. 392 U.S. 157. The Court affirmed that the FCC rule that CATV was interstate communications

268 / Supreme Court Selected Cases and subject to Federal regulation so the FCC had authority to regulate cable television. St. Amant v. Thompson. 390 U.S. 727. Justice Byron White wrote that: Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. To insure the ascertainment and pubhcation of the truth about public affairs, it is essential that the First Amendment protect erroneous publications as well as true ones. United States v. O'Brien. 391 U.S. 367. Chief Justice Earl Warren wrote that: When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. 1969 Brandenburg v. Ohio. 395 U.S. 444. The Court ruled: The constitutional guarantees of free speech and of free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except when such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Citizen Publishing Company v. United States. 394 U.S. 131. Justice William O. Douglas wrote that: Neither news gathering nor news dissemination is being regulated by the decree. The restraints on competition with which the decree deals comport neither with the antitrust laws nor with the First Amendment. Milky Way Production v. Leary. 397 U.S. 98. The Court pointed out that individual states are entitled to provide whatever means they choose to give wider freedom for expression than either the First or Fourteenth Amendments require. Red Lion v. F.C.C. 395 U.S. 361. Justice Byron White wrote that: There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. We hold that the

1812 Through 1995 / 269 Congress and the Federal Communications Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials. Shutdesworth v. Birmingham. 394 U.S. 147. Justice Potter Stewart wrote that: The ordinance was improperly administered to abridge the right of assembly and opportunities for communication of thought in public places. Stanley v. Georgia. 394 U.S. 557. Justice Thurgood Marshall wrote that: If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Tinkev v. Des Moines Community School District. 393 U.S. 503. Justice Abe Fortes wrote that: In our system, state-operated schools may not be enclaves of totalitarianism. We do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. 1970 Greenbelt v. Bresler. 398 U.S. 6. Justice Potter Stewart wrote that: The pubhc debates were heated. The News-Review was performing its wholly legitimate function as a community newspaper when it published full reports of these debates. The reports were accurate and fidl. The record is completely devoid of evidence that anyone in the city of Greenbelt or anywhere else thought Bresler had been charged with a crime. To permit the infliction of financial liability upon the paper for publishing these news articles would subvert the most fundamental meaning of a free press. Meyer v. State of Nebraska. 73 L. Ed 2d 1466. The Court pointed out that rights guaranteed by the First Amendment are not so much private rights as they are the rights of the general public. The guarantee of free expression under the First Amendment is a fundamental one that protects expression from the vagaries of local censorship and political opportunism. Rowan v. Post Office. 397 U.S. 782. Chief Justice Warren Burger wrote that: The right of every person to be let alone must be placed in the scales

270 / Supreme Court Selected Cases with the right of others to communicate. No one has a right to press even good ideas on an unwilling recipient. The asserted right of a mailer stops at the outer boundary of every person's domain. 1971 Austin v. Keefe. 402 U.S. 415. Chief Justice Warren Burger wrote that: The Organization for a Better Austin circulated leaflets accusing Jerome M. Keefe, a real estate broker, of "panic peddling" and "blockbuster" tactics. An injunction against the leaflets was outlawed. Blount v. Rizzi. 400 U.S. 410. The Court ruled that the practice of the Post Office to refuse mail or to seal money ordersfrompersons dealing in obscene materials, or to require these persons to start court action to determine if material was actually obscene were unconstitutional requirements. The Court said the Post Office had to initiate the request for such proceedings. Cohen v. California. 403 U.S. 15. Justice John Marshall Harlan wrote that: It is often true that one man's vulgarity is another's lyric. Governments might seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able to discern little social benefit that might result from running the risk of opening the door to such grave risks. Surely the state has no right to cleanse the public debate to the point where it is grammatically palatable to the most squeamish among us. Lemon v. Kurtzman. 403 U.S. 602. The Supreme Court reaffirmed its precedent of a three part test for determining when a government action or program amounts to the unconstitutional establishment of religion. Monitor Patriot Company v. Roy. 401 U.S. 265. Justice Potter Stewart wrote that: Publications concerning candidates must be accorded at least as much protection under the First Amendment as those concerning occupants of public office. The candidate who vaunts his spodess record and sterling integrity cannot convincingly cry foul when an opponent or an industrious reporter attempts to demonstrate the contrary. A charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office. New York Times v. United States. 403 U.S. 713. Justice Hugo L. Black wrote that:

1812 Through 1995 / 271 Every moment's continuance of the injunctions against these newspapers amounts to aflagrant,indefensible and continuing violation of the First Amendment. It is unfortunate that some of my Brethren are apparendy willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraint. Ocala Star-Banner v. Darnron. 401 U.S. 295. Justice Potter Stewart wrote that: Under any test we can conceive, the charge that a local mayor and candidate for county elective post has been indicted for perjury in a civil rights suit is relevant to his fitness for office. Rosenbloom v. Metromedia. 403 U.S. 29. Justice Wilham J. Brennan wrote that: The police campaign to enforce the obscenity laws was an issue of public interest. If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. Voluntarily or not, we are all "pubhc" men to some degree. [The station] relied on information supplied by pohce officials. There is no evidence to support a conclusion that [the station] entertained serious doubts as to the truth of its reports. United States v. Reidel. 402 U.S. 351. Justice Byron White wrote that the First Amendment did not provide protection for selling obscenity in the mails under terms of the Roth decision. Time v. Pape. 401 U.S. 279. Justice Potter Stewart wrote that: Time's omission of the word "alleged" amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. Time's conduct reflected at most an error of judgment. Nothing in thus opinion is to be understood as making the word "alleged" a superfluity in published reports of information damaging to reputation. United States v. 37 Photographs. 402 U.S. 363. Justice Byron R. White wrote that: Obscenity is not within the scope of the First Amendment protection. Hence Congress may declare it contraband and prohibit its importation.

272 / Supreme Court Selected Cases Van Nuys Publishing Company v. City of a Thousand Oaks. 405 U.S. 1042. The Court ruled a city ordinance prohibiting the distribution, circulation, or delivery of handbills, circulars, newspapers, or other printed matter or advertising literature without prior consent of a property owner could not be used in a manner which would prohibit depositing newspapers, political, or religious literature, or other protected material, in mail slots or similar receptacles. Younger v. Harris. 401 U.S. 37. The Court wrote that freedom guaranteed by the First Amendment needs breathing space to survive. The government can regulate these rights only with narrow specificity. The regulations in this situation are held to be more stringent standards of clarity and precision than are required for statutes laying down needs for the market place. 1972 Branzburg v. Hayes. 408 U.S. 665. Justice Byron White wrote that: We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news,freedomof the press could be eviscerated. It has generally been held that the First Amendment does not guarantee the press a constitutionalrightof special access to information not available to the public generally. The great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. We are asked to interpret the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. This conclusion involves no restraint on what newspapers may publish not on the type or quality of information reporters may seek to acquire nor does it threaten the vast bulk of confidential relationships between reporters and their sources. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. California v. LaRue. 409 U.S. 109. The Court upheld California rules prohibiting bottomless dance and other erotic shows in night clubs and bars. Central Hardward Company v. NLRB. 407 U.S. 539. Justice Lewis F. Powell, Jr. wrote that: Before an owner of private property can be subjected to the commands of the First Amendment, the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use.

1812 Through 1995 / 273 Gooding v. Wilson. 405 U.S. 518. Chief Justice Warren Burger wrote that: It is regrettable that one consequence of this holding may be to mislead some citizens to believe that fighting words of this kind may be uttered free of any legal sanctions. Grayned v. Rockford. 408 U.S. 104. Justice Thurgood Marshall wTote that: The anti-picketing ordinance was too vague and overbroad and therefore was invalid. The anti-noise law was upheld. Kleindienst v. Mandel. 408 U.S. 753. Justice Harry A. Blackmun wrote that: Plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. Lloyd Corporation v. Tanner. 407 U.S. 551. Justice Lewis Powell wrote that: The First and Fourteenth Amendment safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscrminatorily for private purposes only. There has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitie respondent to exercise therein the asserted First Amendment rights. Perry v. Sinderman. 408 U.S. 593. The Court pointed out that the government may not deny a benefit to a person on a basis that infringes his constitutional protected interests!—especially his interest in freedom of speech. Police Department v. Moseley. 402 U.S. 92. The Court said that government has no power to restrict expression because of its message, ideas, its subject matter, or its content. The essence of forbidden censorship is content control; any restriction on expressive activity because of its content would completely undercut the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. 1973 Business Executives Move for Peace v. FCC. 412 U.S. 94. The Court ruled that television and radio stations have an absolute right to reject advertisements dealing with political campaigns and controversial issues. CBS v. Democratic National Committee. 412 U.S. 94. Chief Justice Warren Burger wrote that: Congress, and the Commission as its agent, must remain in a posture of

274 / Supreme Court Selected Cases flexibility to chart a workable "middle course" in its quest to preserve a balance between the essential public accountability and the desired private control of the media. The policies do not constitute governmental action violative of the First Amendment. Doe v. McMillan. 412 U.S. 306. The Court pointed out that the right to publish is firmly embedded in the First Amendment and is central to the constitutional guarantee of a free press. Hess v. State of Indiana. 44 U.S. 105. The Court said that words amounting to nothing more than advocacy of illegal actions at some future time do not come within the narrowly limited classes of speech the states may punish. Kaplan v. California. 413 U.S. 115. Chief Justice Warren Burger wrote that: A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization is qualified by the book's content. As with pictures, films, paintings, drawings, and engravings, both oral utterances and the printed word have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California. 413 U.S. 15. The principal guideline or definition of obscenity is the three part test outlined in the 1973 Miller v. California decision. To be found to be illegally obscene, material must fail all three parts of the test. Part One of the Miller Test 1. The material must depict actual sexual activities or scatological matter. Implied or inferred sexual activities are insufficient. 2. The sexual activity must be patently offensive to an average person in the court's community as determined by the jury or the court. 3. The material must appeal to the actual lascivious or prurient interests. Part Two of the Miller Test The sexual conduct must be proscribed by a constitutionally valid state law. Part Three of the Miller Test 1. The material must lack serious literary, artistic, political, or scientific value. 2. The publisher, author, or distributor must be able to prove the serious value of the material. 3. The entire work, taken as a whole, must be determined to be obscene. Passages, pages, sections, or chapters alone cannot establish its obscene nature. Neither can words or phrases, profanity, nor illustrations or pictures of nudity, including those of genital organs, be considered obscene. 4. Items 1,2, and 3 are based on standards broader than a local community. The jury or the court cannot apply local community standards to these.

1812 Through 1995 / 275 Other Factors Including Some Based on Later Supreme Court Decisions 1. Any depiction of children, persons 17 years or younger, engaging in sexual activities is so odious that it can be proscribed as obscene. 2. States and pohtical subdivisions may establish reasonable legal provisions to control or proscribe obscenity, however, those laws cannot include distasteful material that is fully protected by the First Amendment. 3. Legal action can be taken against obscene material where it is distributed as well as or instead of the locale where it has been written, printed, prepared, or published. 4. An adult may own and view obscene material within the confines of the privacy of his or her domicile; however, no such protection applies to material classed as kiddie-porn or obscenity. 5. The three test Miller standard makes many materials not to be illegal obscenity. 6. The words pornography and obscenity are not legal synonyms. Actually, only hard core pornography is considered to be obscene. Soft core pornography is not. 7. An official judicial determination must be made to establish the possible obscene nature of materials. 8. A lesser standard can be legally allowed for children, persons 17 years of age or younger. However, material that has not been determined to be obscene or pornographic for children may be available to children. 9. Illegal (CM* hard core) pornography as well as obscenity is a form of expression not entided to First Amendment protection. 10. Violation of valid state laws covering obscenity or hard core pornography can lead to criminal prosecution, incarceration, and/or fines. 11. Material arousing lustful thoughts or feelings cannot be declared obscene in and of itself because lust is a normal and healthy condition. Papish v. University Board of Curators. 410 U.S. 677. The Supreme Court said the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of expression. The state university's performance as editor of an underground student newspaper was no justification for the university to deny her rights protected by the First Amendment. College students could not be expelled from the university for distributing an underground paper containing four letter words and a cartoon of the Goddess of Justice and the Statue of Liberty being raped by a policeman. This material was neither constitutionally obscene nor disruptive. The mere dissemination of ideas—no matter how offensive to good taste on a state university campus—may not be shut off in the name alone of the conventions of decency. Paris Adult Theatre v. Slaton. 413 U.S. 49. Chief Justice Warren Burger wrote that: The States have a legitimate interest in regulating commerce in obscene material and in regulating the exhibition of obscene material in places

276 / Supreme Court Selected Cases of public accommodation, including so-called "adult" tiieatres from which minors are excluded. Pittsburgh Press Company v. Pittsburgh Commission on Human Relations. 413 U.S. 376. Justice Lewis F. Powell wrote that: We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitution. Sex discrimination in nonexempt employment has been declared illegal under the ordinance and it is an unlawful employment practice for an advertiser to cause an employment ad to be published in a sex-designated column. The Commission's order does not infringe the First Amendment rights of the Pittsburgh Press. Roev. Wade. 410U.S. 113. The Court said that by placing discretion in the hands of an official to grant or deny a license, such a statute creates a threat of censorship that by its very existence chills free speech. United States v. 12 Reels of Film. 413 U.S. 123. Justice William O. Douglas wrote that: The First Amendment was the product of a robust, not a prudish, age. By what right under the Constitution do five of us have authority to impose our set of values on the literature of the day? There is danger in that course, the danger of bending the popular mind to new norms of conformity. There is, of course, also danger in tolerance for tolerance often leads to robust or even ribald productions. Yet that is part of the risk of the First Amendment. 1974 Cantrell v. Forest City Publishing Company. 419 U.S. 245. Justice Potter Stewart wrote that: The jury was plainly justified infindingthat [the reporter] had portrayed the Cantrells in a false light through knowing and reckless untruth. The jury could reasonably conclude that Forest City Publishing Company should be held vicariously liable for the damage caused by the knowing falsehoods in the story. Fritz v. Clermont. 419 U.S. 832. The Court said that constitutional safeguards which shield and protect the communicator perhaps more importantly also assure the public of the right to receive information in an open society. Gertzv. Welch. 418 U.S. 323. Justice Lewis Powell wrote that:

1812 Through 1995 / 277 Private individuals are not only more vulnerable to injury than public officials and pubhc figures; they are also more deserving of recovery. We hold that so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. Handing v. United States. 418 U.S. 87 Justice Wilham H. Rehnquist wrote that: The brochure stands by itself. It cannot seriously be contended that an obscene advertisement could not be prepared for some type of nonobscene material. Jenkins v. Georgia. 418 U.S. 153. Justice William Rehnquist wrote that: We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patendy offensive way, and that it is therefore not outside the protection of the First Amendment because it is obscene. Lehman v. Shaker Heights. 418 U.S. 298. Justice Harry Blackman wrote that: In much the same way that a newspaper or periodical of even a radio or television station need not accept every proffer of advertising from the general pubhc, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles. The managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Pell v. Procunier. 417 U.S. 817. Justice Potter Stewart wrote that: The proposition that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally finds no support in the words of the Constitution or in any decisions of the Court. Procunier v. Martinez. 416 U.S. 396. The Court pointed out that the First Amendment serves not only the polity but also those of the human spirit—a spirit that demands self-expression. And the Fourteenth Amendment extends the constitutional protection of freedom of the press in the First Amendment and other constitutional rights to forbid and prevent state

278 / Supreme Court Selected Cases governments or state officials from infringing upon such freedom. Saxbe v. Washington Post. 417 U.S. 843. Justice Potter Stewart wrote that: Newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public. 1975 Bigelow v. Virginia. 955 Ct. 2222 190. Justice Harry Blackmun wrote that: Advertising is not stripped of all First Amendment protection. The relationship of speech to the marketplace of products or services does not make it valueless in the marketplace of ideas. Cox Broadcasting Company v. Cohn. 420 U.S. 469. Justice Byron R. White wrote that: At the very least, the First Amendment will not allow exposing the press to liability for publishing information released to the public in official court records. Once true information is disclosed in public court documents open to pubhc inspection, the press cannot be sanctioned for publishing it. Reliance must rest upon the judgment of those who decide what to publish or broadcast. Erznoznik v. Jacksonville. 95 S. Ct. 2268. Justice Lewis Powell wrote that: The limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content Clearly all nudity cannot be deemed obscene even as to minors. Miami Herald v. Tornillo. 418 U.S. 241. Chief Justice Warren Burger wrote that: Compelling editors or publishers to publish that which "reason" tells them should not be published is what is at issue in this case. Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forego publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit of news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitation on the size of the paper, and content, and treatment of public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

1812 Through 1995 / 279 Murphy v. Florida. 95 S. Ct. 2031. Justice Thurgood Marshall wrote that: The petitioner has failed to show that the setting of the trial was inherendy prejudiced or that the jury selection process of which he complains permits an inference of actual prejudice [because of excessive publicity]. Southeastern Promotions v. Conrad. 95 S. Ct. 1239. Justice Harry Blackmun wrote that: The city ordinance [used to deny a performance of Hair in a city auditorium] imposed a prior restraint on protected expression without procedural safeguards. Wood v. Strickland. 420 U.S. 308. The Court ruled that a school administrator, or board member, is not immune from liability or damage under the Civil Rights Act if he knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the constitutional rights or do other injury to the student affected, or if he took the action with malicious intention to cause a deprivation of constitutional rights or other injury to the student. 1976 Buckley v. Valeo. 96 S. Ct. 612. The Court's per curium opinion stated: The First Amendment protects political association as well as political expression. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech. A restriction on the amount of money a person or group can spend on political communications during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration and the size of the audience reached. The First Amendment simply cannot tolerate restriction upon the freedom of a candidate to speak. California Fair Political Practices Commission v. Hardee. 430 U.S. 969. The Court pointed out that the purpose of the First Amendment is to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people. Nebraska Press Association v. Stuart. 427 U.S. 519. The Court ruled that banning publication of information obtained in open court or by other sources constitutes prior restraint and violates the constitutional guarantee of freedom of the press.

280 / Supreme Court Selected Cases Time v. Firestone. 424 U.S. 448. Justice William Rehnquist wrote that: Respondent [Firestone] did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it Dissolution of a marriage through judicial proceedings is not the sort of "public controversy" referred to in the Gertz decision, even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public. She was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony. We hold respondent was not a "public figure" for the purpose of determining the constitutional protection afforded petitioner's report of the factual and legal basis for her divorce. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection, we think Gertz provides an adequate safeguard for the constitutionally protected interests of the press and affords it a tolerable margin for error by requiring some type of fault. Virginia Citizens Council v. Virginia Pharmacy Board. 425 U.S. 748. Justice Harry Blackmun wrote that: Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominandy free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of economic information is indispensable. 1977 First National Bank of Boston v. Belloti. 431 U.S. 765. The Court ruled that a commercial advertisement is constitutionally protected not so much because it pertains to the seller's business as because it fiirthers the social interest in the free flow of commercial information. Linmark Associates v. Willingbore. 431 U.S. 85. The government may not achieve its important objective by restricting the free flow of truthful commercial information, according to the Court. Penthouse v. Rancho La Costa. 431 U.S. 85. The Court admonished that when the right of freedom of the press weighs in the balance, the scales must necessarily tip in favor of this fundamental freedom. 1978

1812 Through 1995 / 281 FCC v. Pacifica Foundation. 438 U.S. 726. The Court ruled that the FCC could ban as indecent the daytime broadcasting of a monologue by George Carlin about Seven Dirty Words to shield children from hearing such vulgarity. Friedman v. Rogers. 440 U.S. 1. Justice Lewis Powell wrote that: There is a significant possibility that trade names will be used to mislead the pubhc. The possibdities for deception are numerous. The use of a trade name facilitates the advertising essential to large-scale commercial practices—conduct the State rationally may wish to discourage. Texas has done no more than require that commercial information about optometrical services appear in such a form as is necessary to prevent its being deceptive. Givhan v. Western Line Consolidated School District. 439 U.S. 410. Justice Wdliam Rehnquist wrote that: Having opened his office door to the petitioner, the principal was hardly in a position to argue that he was the "unwilling recipient" of her views. Neither the First Amendment nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the pubhc. We decline to accept such a view of the First Amendment. 1979 Ambank v. Norwick. 441 U.S. 68. The Court said that the state properly may regard all teachers as having an obligation to promote civic virtues and understanding regardless of the subject taught. Gannett v. De Pasquale. 443 U.S. 368. Justice Byron White wrote that: We hold that members of the public have no constitutional right to attend criminal trials. Once the danger of prejudice had dissipated, a transcript of the suppression hearing was made available. The press and the public had a full opportunity to scrutinize the suppression hearing. Herbert v. Lando. 441 U.S. 153. Justice Byron White wrote that: Creating a constitutional privilege foreclosing direct inquiry into editorial process would not cure the [protection] problem for the press. Only complete immunity from liability from defamation would effect this result, and the Court has regularly found this to be an untenable construction of the First Amendment.

282 / Supreme Court Selected Cases Landmark Communications v. State of Virginia. 435 U.S. 829. The Court pointed out that whatever differences may exist about interpretations of the First Amendment there is practically universal agreement that a major purpose of that amendment is to protect the free discussion of governmental affairs. Media cannot be criminally punished for publishing truthful reports of confidential judicial proceedings concerning actions of government officials. If the constitutional protection of a free press means anything, it means the government cannot decide what a newspaper may or may not publish. Smith v. Daily Mail Publishing Company. 443 U.S. 97. Chief Justice Warren Burger wrote that: The State's interest in protecting the identity of juveniles cannot justify the statute's imposition of criminal sanctions on this type of publication. Moreover, the statute's approach does not satisfy constitutional requirements. It does not restrict the electronic media or any form of publication except newspapers. Woolston v. Reader's Digest Association. 443 U.S. 157. Justice William Rehnquist wrote that: We reject the contention that any person who engages in criminal conduct automatically becomes a pubhc figure for purposes of comment on a limited range of issues relating to his conviction. To hold otherwise would create an "open season" for all who sought to defame persons convicted of a crime. 1980 Central Hudson Gas & Electric Co. V. Public Service Commission of New York. 447 U.S. 557. Justice Lewis Powell wrote that the ban on promotional advertising by electric utilities companies which was imposed by the state commission violated the First Amendment as applied to the states through the Fourteenth Amendment. Consolidated Edison v. Public Service Commission. 447 U.S. 530. The Court ruled that suppression of bill inserts that discuss controversial issues of public policy directiy infringes the freedom of speech by the First and Fourteenth Amendments. Richmond Newspapers, Inc. V. State of Virginia. 448 U.S. 555. The Court ruled that trials must be open to the public and the press unless a compelling reason can be established to do otherwise. Village of Schaumburg v. Citizens for a Better Environment. 444 U.S. 620. The Court pointed out that included within the protection of the First Amendment are appeals for funds, on-street and door-to-door appeals, and a variety of speech interests including communication of information, dissemination and propaganda of

1812 Through 1995 / 283 views and ideas, and advocacy of causes. Soliciting financial support is subject to reasonable regulation, but such regulation must accept that solicitation is a characteristic support for particular causes or for particular views on economic, pohtical, or social issues, and that without solicitation the flow of such information and advocacy might likely cease. 1981 Widmar v. Vincent. 454 U.S. 263. The Court ruled a university regulation and refusal was an unjustifiable contentbased exclusion of rehgious speech. A state agency's regulation of speech should be content neutral. The exclusion of religious speech required the university to show that the regulation was necessary and that it was narrowly drawn to achieve that end. Chandler v. Florida. 449 U.S. 560. The Court ruled that state courts may allow television coverage of criminal trials even if the defendant objects and unless the defendant can show that such coverage will affect the fairness of the trial. 1983 Bolger v. Youngs Drug Products Corporation. 444 U.S. 620. The Court said that there is a heavy legal presumption against the constitutional validity of a statute which constitutes a prior restraint of expression. Marsh v. Chambers. 463 U.S. 783. The Court ruled that the practice of the Nebraska State Legislature of beginning each legislative day with a prayer by a chaplain paid by the state was not a violation of the First Amendment. Minneapolis Star and Tribune Company v. Minnesota Commission of Revenues. 460 U.S. 575. Minnesota's tax on paper and ink used for publications could not replace as sales tax according to the Court since it would single out the press for a special tax burden and would be a threat to First Amendment rights. Perry Education Association v. The League of Women Voters of California. 460 U.S. 37. Justice Byron White wrote that public property which is not by tradition or legislation a forum for public communication is governed by different standards; the First Amendment does not guarantee access to property simply because it is owned by the government. In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes—communicative or otherwise—as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's views. 1984

284 / Supreme Court Selected Cases Federal Communications Commission v. The League of Women Voters of California. 104 S. Ct. 3106. Justice Wilham J. Brennan wrote that: Were a similar ban on editorializing applied to newspapers [as the law passed by Congress to prohibit editorials on public radio and television stations] and magazines, we would not hesitate to strike it down as violative of the First Amendment [The ban] was aimed at precisely that form of speech which the framers of the Bill of Rights were most anxious to protect—speech that is indispensable to the discovery and spread of political truth. 1985 Anderson v. Liberty Lobby. 106 S. Ct. 2505. The Court ruled that a pubhcfiguremust present evidence so that a court can find clear and convincing evidence of actual malice in a libel suit, according to Justice Byron White's report. Cornelius v. NAACP Legal Defense and Education Fund. 473 U.S. 788. The Court defined public forums thus: There are three distinct kinds of public forums. First is an open public forum, which traditionally means that any person or member of the public may use it freely for expressive purposes. Second is a limited public forum, which traditionally consists primarily of government property which the government has opened for use as a public place of expressive activity for a limited time. People generally have a First Amendment right to engage in expressive activity for a limited time. The government's own acquiescence in the use of the property as a forum for expressive activity tells us that such activity is compatible with the uses to which the place is normally put. Third is a non-public forum. Control to access to a non-public forum can be based upon subject matter and speaker identity so long as the distinctions are reasonable in tight of the purpose served by the forum, and the distinctions are viewpoint neutral on the part of the government. Metromedia v. City of San Diego. 453 U.S. 490. The Court ruled that billboards containing non-commercial speech cannot be banned. Philadelphia Newspaper v. Hepps. 475 U.S. 767. Justice Sandra Day O'Conner wrote that: Public figures suing for libel damages involving issues of public concern must bear the burden of proving that the libelous statements are false. Thus the proof burden is shifted to the plaintiff. When the evidence is ambiguous and the Court cannot know how much of the speech affected by the allocation of the burden is true and how much is

1812 Through 1995 / 285 false and the scales are in such an uncertain balance, the Court believes that the Constitution requires us to tip them in favor of protecting free speech. In the matter of the RMJ Case. 455 U.S. 191. The Court ruled that attorneys could advertise in their own words if they were not misleading or false; professional organizations could not specify the wording of such ads. Zauderer v. Disciplinary Counsel. 471 U.S. 626. The Court ruled that an attorney may not be disciplined for soliciting legal business through printed advertising containing truthfid and non-descriptive information and advise regarding legal rights of potential clients. 1986 Bethel School District 403 v. Fraser. 106 S. Ct. 3159. The Court ruled a school could punish for lewd or vulgar speech that is not disruptive but that undermines the school's mission by flaunting the school administration's values of citizenship. A student was suspended for three days after he had made a sexually suggestive nominating speech in a school assembly. The school relented on the second day and he was re-instated as a commencement speaker. His remarks were pubhshed in the high school newspaper which received no complaints as neither did many other high school or commercial publications which published his remarks. The Court ruled that high school students do have the right to make nondisruptive pohtical comments. Vulgar words said in hallways or lockerooms or off-campus cannot be punished Such words can be punished only if used in classes or required assemblies. Federal Election Commission v. Massachusetts Citizens for Life. 107 S. Ct. 616. The Court ruled that a Massachusetts statute forbidding a nonprofit corporation from using its newsletter to urge pro-life voting was a violation of the First Amendment. Posadas de Puerto Rico v. Tourism Company of Puerto Rico. 478 U.S. 328. Justice William H. Rehnquist wrote that: Commercial speech receives a limited form of First Amendment protection as long as it concerns a lawful activity and is not misleading or fraudulent. 1987 Board of Commissioners v. Jews for Jesus. 107 S. Ct. 2568. The Court ruled that the Los Angeles City Airport Commissioners could not have a rule against distributing free religious literature since it would violate the First Amendment whether the Airport was a public forum or not.

286 / Supreme Court Selected Cases Edwards v. Aguillard. 107 S.Ct. 2573. The Court ruled that a Louisiana statute providing for balanced treatment for Creation Science and Evolution was unconstitutional because its primary purpose was the promotion of a particular religious belief. Lakewood v. Plain Dealer. 108 S. Ct. 2138. A statute giving the mayor unbridled authority over whether to permit news racks on city streets was declared unconstitutional by the Court. 1988 Hustler Magazine v. Jerry Falwell. 485 U.S. 46. The Court found that it was doubtful that any reasonable concrete standard could ever be articulated to draw a principled line between a Hustler magazine parody very offensive to Jerry Falwell and other satire. To permit a jury to impose liability for mere outrageousness would invite jurors to base liability on tastes and prejudices, the Court said. Riley v. National Federation of the Blind of North Carolina. 108 S. Ct. 2667. The Court pointed out that the difference between compelled speech and compelled silence is without constitutional significance in the context of protected speech. The First Amendment guarantees freedom of speech which comprises the decision of both what to say and what not to say. Rankin v. McPherson. 107 S. Ct. 2891. When an employee in a constable's office said to a co-worker that "if they go for him again, I hope they get him" when discussing the President, she was discharged, but her First Amendment rights to comment on a matter of public concern outweighed any interests of the constable's office. Hazelwood School District v. Kuhlmeier. 484 U.S. 260. The Court ruled that educators did not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as that censorship are reasonably related to legitimate pedagogical concerns. The Court did not, however, mandate that school officials begin a system of censorship even though they might have authority to do so. Arkansas, California, Colorado, Kansas, Iowa, and Massachusetts now have statutes making the decision inoperative. Other states have regulations or state constitutional provisions setting the decision aside since states may provide greater rights than the First Amendment does. Some lower courts have already ruled that the decision did not apply in specific instances. If a school has officially declared student publications are forums for student expression the decision has no bearing, and school officials can simply ignore the decision, although others have found it an opportunity to become quite repressive even though the Court specified that the decision did not set aside the earlier Tinker decision. The Court recognized the need for free expression on the part of high school

1812 Through 1995 / 287 students in telling school officials that the decision did not authorize them to interfere with underground pubhcations in content or distribution. The decision does not apply to college level publications or expression. 1989 Eu v. San Francisco Democratic Central Committee. 109 S. Ct. 1013. The Court ruled that the California ban on endorsements of primary election candidates by political parties was invalid because it burdened the First Amendment rights of pohtical parties and their members. The Florida Star v. B.T.F. 109 S. Ct. 2603. The Court ruled that imposing civd damages upon a newspaper violated the newspaper's First Amendment rights. Ft. Wayne Books v. Indiana. 489 U.S. 46. The Court ruled that pohce could not seize the inventory of adult book stores before a trial had found any of the publications were obscene. Sable Communications v. FCC. 109 S. Ct. 2829. Justice Byron White wrote that: [A California] law has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children. It is another case of burning up the house to roast the pig. Texas v. Johnson. 491 U.S. 397. Justice William Brennan wrote that: The principle offreespeech under our system of government is to invite dispute; it may indeed serve best its high purpose when it induces a condition of unrest, or creates dissatisfaction with conditions as they are, or even stirs people to anger. The defendant's act of burning an American flag during a protest rally was expressive conduct protected by the First Amendment. If there is a bedrock principle underlaying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. 1990 Board of Education of the Westside Community Schools v. Mergens. S. Ct. No. 88-1597. The Supreme Court returned to its earher limited pubhc forum doctrine in its Mergens decision upholding the Equal Access Law. The Court said that a limited forum exists whenever a pubhc school grants an offering to or an opportunity for one or more non-curriculum related student group is one that does not pertain to the body of the courses offered by the school. At issue was whether a religious student group could meet in school facilities; the answer was yes because other non-curriculum

288 / Supreme Court Selected Cases related clubs did. The school could only provide custodial oversight for noncurriculum related meetings. Teachers could not be required to attend meetings or serve as advisers to rehgious groups and students could not be required or encouraged to attend religious group meetings. Milkovich v. Lorain Journal Company. 497 U.S. 1. The Court ruled that statements which cannot be reasonably interpreted as stating actual facts about an individual, such as rhetorical hyperbole, are protected from libel action. Osborne v. Ohio. 109 L. Ed. 98. The Court upheld an Ohio law making it a crime to possess pornographic pictures of children. Eighteen other states have similar laws. United States v. Eichman. 110 S. Ct. 2404. The Court ruled that any suggestion that the government's interest in supporting speech becomes more significant and weighty as popular opposition to that government-supported speech grows was foreign to and a threat to the First Amendment. 1991 Simon and Schuster v. New York Crime Victims Board. 112 S. Ct. 501. The Court ruled that the New York Son of Sam statute which required that proceedsfromthe sale of the assets of a convicted criminal be placed in escrow so the victims could be compensated therefrom is inconsistent with the First Amendment in the case of publishing books. 1992 Forsyth County v. Nationalist Movement. S. Ct. No. 91-538. The Court ruled invalid a county ordinance empowering the county administrator to adjust permit fees for use of public property, based on the amount of hostility likely to be created by the content of speech because it violated the First Amendment. Lee v. Weisman. 120 L. Ed. 567. The Court ruled that prayers at public school graduation ceremonies are unconstitutional involvement of government in religious activities. R.A.V. v. St. Paul. 120 L. Ed. 305. The Court said, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul, Minn, has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content."

1812 Through 1995 / 289 1993 Lamb's Chapel v. Center Moriches School District. S. Ct. No. 91-2024. Justice Byron White wrote that refusal to permit the use by Lamb's Chapel was invahd because it amounted to discrimination against speech. Religious groups must be treated the same as other groups in the use of school facilities after school hours. 1995 Capital Squire Review Board v. Pinette. S. Ct. No. 94-780. The Court ruled that the KuKluxKlan had therightto erect a cross at a park near the Ohio State Capitol. Hurley v. Irish-America Gay Group. S. Ct. No. 94-749. The Court ruled that the St Patrick's Day parade and its themes were expressions of a private organization and constituted a protected form of expression. The parade sponsors were not obligated or required to allow persons with other messages to participate in that particular parade. However, other groups were also entided to stage message parades also. Lebron v. National Passenger Corporation. S. Ct. No. 93-1525. The Court ruled that since Amtrak was part of the federal government and thus subject to thefreespeech requirements of the First Amendment and could not prohibit political billboardsfromtrain stations. Mclntyre v. Ohio Elections Commission. S. Ct. No. 93-986. The Court ruled that an Ohio law banning the distribution of anonymous political campaign literature requiring that fliers had to list the sponsor's name violated the First Amendment. Rosenberger v. Rector and the Visitors of the University of Virginia. S. Ct. No. 94-1039. The Supreme Court upheld the right of a religious student organization to receive student activities funds for its pubhcation largely because the university did not charter it as a religious organization. Rubin v. Coors Brewing company. S. Ct. No. 93-1631. The Court ruled that the Coors Brewing Company and other beer companies could list the alcohol content on beer labels. United States v. National Treasury Employees Union. S. Ct. No. 93-1170. The Court ruled that a ban on honoria for articles or speeches by federal employees violated the First Amendment. U.S. Term Limits v. Thornton. No. 93-1456 and S. Ct. No. 93-1828. The Court struck down a state-imposed term limits because they restricted the First Amendment rights of association of members of Congress and political parties.

290 / Supreme Court Selected Cases United States v. X-Citement Video. S. Ct. No. 93-723. The Court upheld a federal law against child pornography but required the law to make clear the government must prove a defendant had actual knowledge that the performers were minors. The remaining years of the twentieth century and the next century will fuel many additional cases as the nation struggles with electronic technology. It is ironic that early electronics induced controls and content regulation because of the supposed scarcity of channels. Now controls and content regulation are again in vogue because of the super-abundance of channels on the Web and the Internet. Much of this struggle will end up in the Supreme Court; hopefully, the justices of the next 25 years won't be befuddled by it all.

Chapter 18

THE PROMISE OF THE TWENTY-FIRST CENTURY The decade of the 1990s settied into the routines of developing rapidly changing electronic devices that posed great changes in the corporate structures of communications media. Accompanying these changes were apprehensions of what would happen to the First Amendment rights of free speech and free press. Much of this concern found its way into comments and debate reflected in the 1980s and 1990s. Two aspects of these years are reflected in the lessening of legal actions and in the expansion of viewpoints as collected in publications of the Freedom Forum, particularly in the Freedom Forum Calendars. Many of these views are contained in Chapters 15 and 16. We are now confronted with what people say and believe about freedom of expression as its status existed rather than in actions or episodes. Worrisome are the pressures upon Congress to change laws to control violence, all forms of pornography including indecency, and developing electronic devices to control content on television and even on computer communication. Of course, the rush of corporate consolidation of media raises additional concerns. In understanding freedom of the press, one must acknowledge that at no time in history was it ever fully established or believed in by all Americans. No federal provision for a free press existed until December 15,1791, or fifteen years after the Declaration of Independence. This provision was provided in a four-word phrase in the First Amendment to the United States Constitution when it was ratified as a part of the Bill of Rights. Expiration of the 1798 Sedition Act in 1801 was a second important step in establishing an understanding of the concept of freedom of the press. It is interesting to note that all political factions believed in and supported freedom of the press. The Anti-Federalists worked for a provision for it in the proposed Constitution, and the Federalists believed it to be a natural law over which the Congress and the federal government could have no control. Even with the First Amendment, Federalist factions and a Federalist-dominated Supreme Court imposed

292 / The Promise of the Twenty-first Century the Sedition Act to discipline press criticism. Jefferson's attack on the Act led to the demise of sedition as a federal legal problem for more than a hundred years. The next step was ratification of the Fourteenth Amendment in 1868 which extended First Amendment free press protections, prohibiting all federal, state, city, or other local government officials or agencies from interfering with free press expression. But it took until 1925 for the Supreme Court to fully accept the scope of the Fourteenth Amendment. Other steps included the weakening and disappearance of state laws on blasphemy, heresy, and criminal hbel. The defining of obscenity as essentially hard core pornography freed literature and the press from stifling controls created by the Comstock era. The Supreme Court entered the field of libel by stipulating that the First Amendment could provide a federal defense when public officials contended they had been defamed by false publication. The Court required the plaintiff to prove that the matter had been pubhshed with actual malice or reckless disregard of the truth. Later decisions applied these provisions to public figures. The Court ruled in 1986 that private persons seeking libel damages would have to prove the falsity of material published. The Federal Communications Commission discontinued its Fairness Doctrine in 1987 to strengthen the free press right of broadcast media. Freedom of the press is a growing concept whose dimensions have expanded periodically. By the 1980s some experts in free expression fields had come to believe that press freedoms had never been stronger or had better legal protection in any preceding decades. Still many aspects of free expression and press have not yet been protected or defined by legal enactments or court decisions. Actions in and of themselves are not protected by the First Amendment unless those actions contain a strong symbolic expression of protected expressions. Fighting words which might incite a breach of peace have no First Amendment protection; however, the courts havefrequentlyfound disturbing words used in context might not really be fighting words at all. Content which poses a serious and actual threat to national security has no First Amendment protection; the courts rarely uphold the contentions of politicians that certain publications endanger national security. Defamation and libel are not fully protected by the First Amendment for private persons, but almost are in the cases of public officials or public figures. Obscenity which has no First Amendment protection has been identified as hard core pornography or scatology. However, it must fail all three strict parts of the Miller test enunciated by the Court in 1973. Later, the Supreme Court ruled that depiction of children engaging in sexual activity is so odious that it has no constitutional protection. Childhood ends at age 13 in some states; provisions of the Twenty-sixth Amendment probably establish the boundary between childhood and adulthood at 18. Unwarranted invasion of privacy might not be protected by the First Amendment. When expression does not have First Amendment protection, that expression may be regulated by clear and reasonable provisions by government agencies and enacted laws. When the laws enacted are vague, unreasonable, and forbid material clearly

The Promise of the Twenty-first Century / 293 protected by the First Amendment, the courts will not allow them to stand. Movements to have stricter anti-obscenity laws usually are found unconstitutional because proponents create a catch-all law listing whatever seems displeasing. The First Amendment does protect fully content which can be characterized as displeasing, contentious, violent, stupid, profane, and infuriating as well as content which is inspiring, gentie, profound, or wise. The Supreme Court has not yet found in the explicit or implicit language or in the penumbral meanings of the First Amendment any constitutional right to know, or to gather information, or to protect news sources. Despite many gains made to strengthen freedom of the press during the twentieth century, severe weaknesses in the philosophical and legal undergirding of the concept continue to hamper its full fruition in American democracy. Heavy criticism of press performance, particularly from conservative politicians, some business elements, military supporters, fundamentalist religious groups, and even from their liberal counterparts cause a frequent and immediate attack to develop around any controversial comment or news report. Almost always the thrust of the attack is to discredit press media and to demand controls and regulations. Caught in this maelstrom of adult contentiousness is the high school student. Many adults, school administrators, and judges consider a pupil in a public school to be a fair morsel for control and restraint Because the courts hesitate to enter the world of these pupils and do not wish to second guess educators, school pupils with little defense frequentiy suffer the greatest and grossest tyranny over mind, body, and possessions of any segment of society. A paradox exists because the Fourteenth Amendment insists that all persons within the jurisdiction of a governmental agency must be given equal protection of the law, including constitutional law explicating individual rights. The courts sidestep this mandate by asserting there is a special school environment for learning that must be maintained without even minor disruption or interruption by student actions, enthusiasm, expression, or discovery of knowledge. Thus, the courts have for some time authorized school officials to establish reasonable rules as to the time, place, and manner of distributing pubhcations, including those sponsored by the school and those not sponsored by the school. Literature which contains libelous or obscene material, or which presents a real threat of serious disruption or danger, can be denied distribution in the school. This list has been expanded by the U.S. Supreme Court in two recent decisions. First was the Bethel School v. Fraser case. A senior, known for his sense of humor, was scheduled to give a commencement speech. At a school assembly, he nominated a friend for office and used a rather gross sexual innuendo in his remarks. The nominee won handily, but the student was suspended for three days and told he could not give his commencement speech. School officials relented and allowed him to return and to give his speech. But he sued for free speech violation. The case came to the Supreme Court which ruled vulgar and indecent speech could be regulated by school officials. His offending nomination remarks have been published in many high school newspapers across the country, including the one in his own school, in efforts to understand the view of the old justices. No restraint, no punishment, no complaints,

294 / The Promise of the Twenty-first Century no problems, and very htde reaction have occurred because of the publications. More devastating was the 1988 Supreme Court decision in the Hazelwood School v. Kuhlmeier case. The Court in effect authorized high school principals to control and censor completely all content in school-sponsored student publications, theatrical performances, and other forms of student expression. Although the Court insisted the control regulations should be reasonable, it has made learning and expression superficial wherein substantive and controversial ideas or content can be eliminated. Learning thus becomes a dreary orthodoxy. High school students, many of whom are of registering and voting age, can be denied political thought or expression. It is astonishing that the Supreme Court would weaken the First Amendment guarantees of freedom of speech and press for 20 percent of the nation's population at the time when America was extolling the 200th anniversary of its Constitution and Bill of Rights and the heritage offreedom.Fortunately, many school officials believe in and support a free press for their high school students and will remain steadfast in their dedication to American values. These and other issues find their ways into litigation each year. The courts have been on a journey of discovery about them ever since the Gidow decision opened the broadened First Amendment forum. Legislatures in six states had declared the Hazelwood decision to be inoperative therein by the end of 1995. Perhaps the best comment would be to challenge everyone to accept views on speech and press freedoms along with others found in the twentieth century, and to proclaim liberty of expression throughout the land. There is an urgency to do so because the sweep of political change in the 1990s has seen the rise of proposals to change the First Amendment to outlaw flag desecration, to allow school prayer sponsored by public school officials, and to allow installation of censoring chips in computers and television to ban depictions of violence, sex, and probably whatever else might displease a renegade Congress.

NOTES Chapter 2 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

Conley, Patrick T. and John P. Kaminski. The Bill ofRights and the States. 1992. p. 60. American Heritage Dictionary. Mifflin. 1969. p. 98. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985. p. 18. Conley and Kaminski. op cit. p. 126. Ibid. p. 126. Ibid. p. 127. Boyer, Paul S. Purity in Print. Scribner's Sons. 1968. p. 167. Thomas, Isaiah. The History ofPrinting in America. Imprint Society. 1970. pp. 4,45, 50. Ibid. pp. 16, 54, 55. Ibid. p. 17 Ibid. p. 18. Rutland, Robert A. The Birth of the Bill of Rights, 1776-1796. University of North Carolina Press. 1955. p. 14. Thomas, op cit. p. 51. Levy, op cit. pp. 92,93. Ibid. p. 26. Conley and Kaminski. op cit. pp. 80-85. Thomas, op cit. p. 57. Ibid. p. 27. Levy, op cit. p. 27. Ibid. p. 26. Ibid. p. 26. Conley and Kaminski. op cit. p. 80. Levy, op cit. p. 26. Emery, Edwin. The Press and America. Third Edition, Prentice-Hall. 1972. p. 28. Thomas, op cit. p. 66. Ibid. p. 66. Ibid. p. 66.

296 / Notes 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

Ibid. p. 67. Ibid. p. 67. Ibid. p. 550. Ibid. p. 79. Levy, op ctf. p. 19. Ibid. p. 19. Thomas, op CJ7. p. 551. Ibid. p. 552. Ibid. p. 552. Emery, o/; ci/. p. 41. Levy, op cit p. 22. Thomas, op cit. p. 6. Levy, op cit. p. 27. Thomas, op cit. p. 293. Wills, Garry. Inventing America. Vintage Books. 1979. p. 53. Emery, op cit. p. 28. Ibid. p. 56. Thomas, op cit. p. 21. Levy, op cit. p. 22. Thomas, op cit. pp. 340-355. Ibid. p.%9. Levy, op cit. pp. 27-28. /6iV/. p. 19.

Chapter 3 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Bailyn, Bernard. The Ideological Origins of the American Revolution. Belknap Press. 1973. p. 40. Emery, Edwin. The Press and America. Third Edition. Prentice-Hall. 1972. p. 43. Thomas, Isaiah. The History of Printing in America. Imprint Society. 1972. p. 85. Ibid. p. 199. Ibid. p. 231. Levy, Leonard. Emergence of the Free Press. Oxford University Press. 1985. p. 29. Ibid. p. 37. Thomas, op cit. pp. 235,236. Levy, op cit. p. 22. Ibid. p. AS. Thomas, op cit. p. 39. Freedom Forum Calendar. January 20,1993. Thomas, op cit p. 23 5. Emery, op cit. p. 41. Levy, op cit. p. 30. Thomas, op cit p. 242. Levy, op cit. p. xxxii. Thomas, op cit p. 236. Ibid. p. 362. Levy, op cit. p. 49. Ibid. p. 30.

Notes / 297 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66.

Ibid. p. 22. Thomas, op cit p. 200. Emery, op cit. p. 46. Thomas, op cit p. 460. Levy, op cit. p. 49. Emery, op cit. p. 43. Levy, op cit. p. 214. Emery, op cit. p. 59. Freedom Forum Calendar. August 1,1993. Levy, Leonard. Freedom of the Press from Zenger to Jefferson. Bobbs-Merrill. 1966. pp. 61-74. Ibid. pp. 3-10. Ibid. p. 59. Levy, Leonard. Emergence of the Free Press. Oxford University Press. 1985. p. 125. Conley, Patrick T. and P. Kaminski. The Bill of Rights and the States. 1992. p. 233. Levy, op cit. p. 125. Ibid. p. 38. Ibid. pp. 45,46. Ibid.p.M. Ibid. pp. 131-135. Ibid. p. 136. Thomas, op cit p. 98. Ibid. p. 120. Ibid. p. 98. Ibid. p. 252. Levy, op cit. p. 136. Thomas, op cit. p. 568. Emery, Michael and Edwin Emery. The Press and America. Seventh Edition. 1992. p. 38. Thomas, op cit p. 514. Ibid. p. 466. Bailyn. op cit p. 92. Thomas, op cit p. 554. Levy, op cit. p. 59. Thomas, op cit. p. 298. Ibid. p. 121. Ibid. p. 497. Livingston, William. "Of the Use, Abuse, and Liberty of the Press." The Independent Reflector. August 30,1753. p. 75 Thomas, op cit. p. 134. Ibid. p. 6. Emery, Michael and Edwin Emery, op cit. p. 41. Thomas, op cit p. 493. Emery, Michael and Edwin Emery, op cit p. 32. Levy, op cit p. 52. Ibid. p. 41. Thomas, op cit p. 158. Ibid. p. 513.

298 / Notes

Chapter 4 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

Emery, Edwin. The Press and America. Third Edition, Prentice-Hall. 1972. p. 73. Bailyn, Bernard. The Ideological Origins of the American Revolution. Belknap Press. 1973. p. 189. Ibid. p. 126. Ibid. p. 188. Lofton, John. The Press as Guardian of the First Amendment. University of South Carolina Press. 1980. p. 6. Conley, Patrick T. and P. Kaminski. The Bill ofRights and the States. Madison House. 1992. p. 217. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985 .p. 181. Conley and Kaminski. op cit. p. 20. Ibid. pp. 356,357. Dimock, Martha McHutchison. A Chronicle of the American Revolution, 1763-1783. Harper and Rowe. 1976. pp. 17-90. Kessler, Lauren. The Dissident Press. Sage. 1984. p. 21. Bailyn. op cit. p. 67. Kessler. op cit. p. 26. Thomas, Isaiah. The History ofPrinting in America. Imprint Society. 1972. p. 584. Brant, Irving. The Bill ofRights. New American Library. 1965. p. 194. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985. p. 64. Thomas, op cit. p. 312. Bailyn. op cit. p. 56. Emery, op cit. p. 71. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985. p. 64 Thomas, op cit. p. 524. Bailyn. op cit. p. 6. Wills, Garry. Inventing America. Vintage Books. 1979. p. 25. Emery, op cit. pp. 70,71. Thomas, op cit. p. 157. Ibid. p. 159. Levy, op cit. p. 154. Thomas, op cit. p. 131. Emery, op cit. pp. 76,77. Levy, op cit. p. 155. Ibid. p. 65.. Ibid.p.ll. Thomas, op cit. pp. 500,501. Levy, op cit. p. 67. Ibid. p. 66. Freedom Forum Calendar. January 16,1992. Levy, op cit. p. 63. Ibid. p. 175. Ibid. p. 120. Brant, op cit. p. 214. Ibid. p. 194. Thomas, op cit. p. 210.

Notes / 299 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89.

Levy, op cit. p. 72. Bailyn. op cit. p. 112. Thomas, op cit. p. 165. Emery, op cit. p. 79. Brant, op cit. p. 215. Thomas, op cit. p. 327. Ibid. p. MX. Ibid. pp. 572-577. Levy, op cit. pp. 173-174. Ibid. p. 70. Koch, Adrienne, and William Peden. The Life and Selected Writings of Thomas Jefferson. Random House. 1972. p. 293. Emery, op cit. p. 86. Thomas, op cit. p. 395. Ibid. p. 104. Levy, op cit. p. 104. Wagman, Robert J. The First Amendment Book. Pharos Books. 1991. p. 28. Dimock. op cit. p. 48. Thomas, op cit. p. 504. Levy, op cit. p. 85. Freedom Forum Calendar. September 10,1992. Bailyn. op cit. pp. 1, 8. Thomas, op cit. pp. 398-400. Lofton, op cit. p. 6. Bell, Robert. A Few More Words on the Freedom of the Press. Robert Bell. 1776. 4 pp. Tebbel, John, and Sarah Miles Watts. The Press and the Presidency. Oxford University Press. 1985. p. 6. Conley and Kaminski. op cit. p. 11. Lofton, op cit. p. 6. Thomas, op cit. p. 133. Levy, op cit. p. 175. Ibid. p. 185. Levy, Leonard W. Freedom of the PressfromZenger to Jefferson. Bobbs-Merrill. p. 3. Thomas, op cit. p. 560. Conley and Kaminski. op cit. p. 324. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985. p. 175. Morris, Richard B. Witnesses at the Creation. New American Library. 1985. p. 115. Emery, op cit. p. 89. Thomas, op cit. p. 572. Wagman. op cit. p. 28. Ibid. p. 28. Thomas, op cit. pp. 534-539. Ibid. pp. 277-279. Levy, op cit. p. 193. Emery, op cit. p. 94. Tebbel and Watts, op cit. p. 8. Levy, op cit. p. 192. Ibid. p. 192. Ibid. p. 182.

300 / Notes 90. Tebbel and Watts, op cit. p. 20. 91. Koch and Peden. op cit. p. 187. 92. Levy, Leonard W. Freedom ofthe PressfromZenger to Jefferson. Bobbs-Merrill. pp. 131, 132. 93. Levy, Leonard W. Emergence of a Free Press. Oxford University Press. 1985. p. 250. 94. Emery, op cit. p. 134. 95. Freedom Forum Calendar. February 15,1992. 96. Lofton, op cit. p. 13. 97. Emery, Michael, and Edwin Emery. The Press and America. Seventh Edition. PrenticeHall. 1992. p. 83. 98. Thomas, op cit. p. 547. 99. Ibid. p. 219. 100. Ibid. p. 19. 101. Wagman. op cit. p. 147.

Chapter 5 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24.

Dilliard, Irving. "Building the Constitution." St Louis Post-Dispatch. 1987. pp. 33,34. Morris, Robert. Framing the Constitution. National Park Service. 1976. pp. 194,220. Hamilton—Madison—Jay. The Federalist Papers. Mentor Books. 1961. Jefferson, Thomas. Letter to George Washington, 1788. Madison, James. Letter to Thomas Jefferson, October 17,1788. Conley, Patrick T. and P. Kaminski. The Bill ofRights and the States. Madison House. 1992. p. 31. Dilliard. op cit. p. 36. Kane, Joseph Nathan. Facts About the Presidents. Ace Books. 1976. p. 24. Wagman, Robert J. The First Amendment Book. Pharos Books. 1991. p. 41. Lofton, John. The Press as Guardian of the First Amendment. University of South Carolina Press. 1980. p. 15. Ibid. p. 1. Jensen, Merrill, ed. The Documentary History of the Ratification of the Constitution. State Historical Society of Wisconsin. Volume n. 1976. p. 280. Ibid. p. 193. Ibid. p. 149. Ibid. p. 298. Jensen, Merrill, ed. op cit. Volume m. 1978. p. 236. Wegman. op cit. p. 11. Koch, Adrienne, and William Peden. The Life and Selected Writings of Thomas Jefferson. Random House. 1972. p. 437. Jensen, Merrill, ed. op cit. Volume HI. p. 243. Conley, Patrick T. and P. Kaminski. The Bill of Rights and the States. Volume VIE. Madison House. 1992. p. 43. Jensen, Merrill, ed. op cit. Volume II. p. 464N. Kaminski, John P. And Gaspare J. Saladino, eds. Documentary History of the Ratification ofthe Constitution: Commentaries. Volume I. State Historical Society of Wisconsin. 1981. pp. 426,427. Ibid.p.31%. Jensen, Merrill, ed. op cit. Volume II. p. 190.

Notes / 301 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.

Jensen, Merrill, ed. op cit. Volume I. p. 285. Conley and Kaminski. op cit. p. 51. Jensen, Merrill, ed. op cit. Volume II. pp. 167-172. Ibid. p. 199. Kaminski and Saladino, eds. op cit. Volume Xffl. p. 524. Ibid. p. 329. Ibid. p. 571. /&/