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To mark the 200th anniversary of our Constitution, much discussion of that document has been appearing in newspapers and magazines and on radio and television. Although the Bill of Rights bicentennial is actually four years from now, much of this discussion has concerned the First Amendment, and especially its guarantee of freedom of the press.
It might seem natural for the freedom of the press guarantee to get so much attention from newspapers, magazines, and radio and television news and opinion programs. After all, those institutions are "the press," aren't they?
Sorry, but they are not. The term "press" in the First Amendment does not mean the journalism business. Referring to the news media as "the press" is just a piece of modern slang. It is sad to see so many recent editorials and opinion pieces by journalists and journalism professors which purport to discuss freedom of the press -- and which begin by getting it wrong about what "the press" is. They think it is them. It isn't.
The term "press" in the First Amendment meant the printing press, as a symbol for the publication of printed material of all kinds. The phrase "freedom of the press" was the Framers' way of referring to the freedom to publish.
If we wanted some prime examples of recent victories for freedom of the press, they would be court decisions striking down government attempts to censor such products of the printing press as the books Ulysses and Lady Chatterley's Lover, and decisions striking down government attempts to make "un-American" organizations register their duplicating machines.
So "the press" means the printing press -- publishing generally, not just the news media. If we keep this in mind, we can see more clearly what the First Amendment does and does not do. For example, it does not guarantee the public any right to know anything -- not even the right to know what the government is doing.
The Constitution establishes our government on two distinct principles: the democratic principle, and the libertarian principle. The public's right to know springs from the democratic principle -- that the people themselves are the source of governmental authority. If we the people are to be effective masters, we need to know what our servants are up to.
The libertarian principle is that the authority of the government is limited -- that all people have natural rights and liberties which not even a democratic majority may abridge. The First Amendment springs from the libertarian principle, not the democratic one. It protects those who misinform the public as much as those who inform it. The purpose of the First Amendment is to protect religion, publication, and association from democracy itself -- especially, to protect the expression of minority and unpopular ideas from all regulation, even by a majority.
Another common claim arising from the fallacy that "the press" means journalists is that the First Amendment gives journalists special rights, privileges, and immunities in order to help them carry out their noble task of informing the public. The First Amendment does no such thing. In particular, it creates no immunity from having to reveal sources of information. There may be good reasons for having special privileges and immunities for diplomats and for people's relations with psychiatrists, attorneys, priests acting as confessors, and also journalists. But deciding the policy in these areas is a purely legislative matter; it is not controlled by the First Amendment.
Finally, freedom of the press is itself dependent upon and subject to more fundamental principles -- property rights. The First Amendment does not guarantee anyone any right to publish anything -- only the liberty to do so without government interference. The actual right to publish depends on having the required resources -- the physical property of press, paper, and ink. And those you have to supply yourself. The First Amendment does not require anyone to give them to you.
A publisher who refuses to publish your writings has not violated your freedom of the press. The publisher owns the press and is therefore free to print or not print almost anything he pleases. Indeed, a law requiring a newspaper to give equal space to opposing ideas would violate its First Amendment liberty --but mainly by violating its property rights. By the way, attention to the way property rights underlie freedom of the press produces the best solution to a problem which sometimes comes up with high school student publications.
Sometimes a school administration wants to censor something. Well, if the paper (or whatever) is being published with school funds and equipment, the school administration appears to have the right to determine what does and does not appear in it -- for the school is really its owner and publisher.
The obvious way around the problem is for the student editors to sell advertising and use their own resources to produce their newspaper -- to become the publishers. Then and only then can they really wrap themselves in the First Amendment and thumb their noses at the school administrators. (And they would also learn something about the actual business of publishing a paper.)
And one firm restriction on freedom of the press which nobody challenges also has its foundation in property rights: nobody may publish the work of another without his permission. Freedom of the press does not override the property rights in a copyright.
To sum up, freedom of the press just means this: the government may not regulate publishing. Freedom of the press has nothing specifically to do with the journalism business; it has to do with printed publication generally; it guarantees a liberty, not a right; it is a libertarian principle, not a democratic one; and it is thoroughly dependent on the more fundamental principles of property rights. Only if we keep all of these things in mind can we begin to understand the First Amendment.
© Empirical Features. 1987.