Mr. Barger is a corporate public relations executive and writer in Toledo, Ohio.
There’s a note of genuine anxiety in the current wave of newspaper articles and editorials protesting the recent government attacks on the press. In the past, such warnings sounded a lot like the boy who was merely crying, "Wolf." But it’s now clear that many newsmen do feel threatened and are seeking public support in defending the traditional freedoms of the First Amendment.
They may be seeking the impossible. The government, long denied the right to impose direct licensing or controls on the press, may soon be able to establish press control by indirect methods. Such indirect methods grow out of Federal and state power to regulate business, professions, and industry. It is true that some businesses are not presently controlled by Federal regulations or are only partly regulated. No matter. The pattern of Federal regulation was established long ago, and is available for immediate use whenever the opportunity to impose additional regulation presents itself.
This new threat is an ironic development because nobody can accuse newsmen of failure to stand up and be heard when direct attacks were being made on press freedom. Time and again, newspapers have thoroughly roasted and ridiculed government officials who tried to intimidate reporters and censor newspapers. There was mass cheering on most editorial pages when The New York Times won its celebrated Pentagon Papers case. Newsmen have been quick to close ranks when a maverick columnist such as Jack Anderson has been directly threatened by the government. Every journalism textbook carefully presents the case for press freedom, and there’s probably not a reporter in the country who doesn’t know the classic story of John Peter Zenger¹ and similar milestones in the fight for press freedom.
But indirect, or "back door," attacks on press freedom are another ball game, and it may be that the popular newspaper columnists and writers don’t know how this new game is played. Many of them, in fact, supported the adoption of the very control measures that now threaten the press. Over the past 50 years, a large number of newspaper writers and commentators have clamored for additional government regulation of business and industry. But few have bothered to ask what the effect would be on press freedom once intensive regulation of business became a reality. They have apparently felt that newspapers and magazines could exist as islands of freedom in a completely regulated society. But it is not working out that way in practice. Press freedom is now being threatened in several ways that differ radically from the old direct attacks on First Amendment rights. Here are some recent trends:
• Proposals are being made to license newsmen. The central issue in a 1931 landmark case called Near vs. Minnesota involved "prior restraint" of the press. It has been well-established that any form of government licensing of publishing also would result in prior restraint of the press and would be a denial of First Amendment rights.
Congress later created a legal limbo in this area when it passed the Federal Communications Act of 1934, establishing governmental licensing of broadcasters. There has been good reason to fear that the same principle would eventually be extended to cover print media. But with the mounting government attacks on broadcasters, newspapers have finally begun to be alarmed and are calling into question the rationale for broadcast licensing.
But professional licensing is another matter. For a long time, state licensing of doctors and dentists has been widely recognized and accepted, and has been readily embraced by the members of the licensed professions as a mark of status and also as a means of excluding others from entry to the field. The public has been schooled to believe that licensing raises the standards of a profession and excludes crackpots and incompetents. (Not to be outdone, practitioners of trades such as barbering and plumbing have followed suit, although the chief advantage to the public is the privilege of paying higher prices for haircuts and plumbing than would otherwise be possible!)
The rationale for licensing newsmen is that incompetent reporters lack the education and judgment necessary for handling the news in the best interests of society. According to an Associated Press story published in The Detroit Free Press on February 5, 1970, Dr. W. Walter Menninger advocated licensing of reporters and news commentators with certification to be approved or disapproved by peers or members of the news profession. Menninger, the only psychiatrist on the 13-member National Commission on the Causes and Prevention of Violence, was apparently echoing the oft-repeated view that newspapers cause violence by reporting it. He complained that reporters and news commentators may lack the basic understanding of such issues as minority frustrations and may be inaccessible to the man on the street.
This was not an isolated proposal. The following month, a Michigan state representative named James Del Rio called for a special study of the possibilities of licensing and regulating news reporters and editorial writers.3 In 1971, then United States Senator Jack Miller of Iowa told a New York County Lawyers Association that in his opinion journalists should be licensed, with each subject to "having his privilege… to practice his profession revoked for unethical conduct."4 The licensing proposal is very much alive, and is certain to get serious state legislative and Congressional interest in the future.
Whatever the arguments for licensing newsmen, the result of such an action would be to place the control of news and opinion under the government. It would be prior restraint of the worst kind. It would give bureaucrats a lethal tool for excluding the very journalists who questioned their activities. It would effectively end any tendency to criticize the government or the party in power. After all, "unethical conduct" is really a subjective term, and among politicians any news story is unethical if it is unfavorable to them.
But this threat to First Amendment rights, be it remembered, did not come to life in a vacuum. It is a natural outgrowth of the elaborate system of licensing and certifying members of other professions. If newsmen are disturbed over this threat to freedom, perhaps they should reexamine the entire concept of professional licensing. There is a great deal in this type of licensing that is a form of restraint of trade. It is not surprising that the system could easily be extended to inhibit freedom of expression. The proposal to license newsmen is getting serious attention only because other licensing schemes have become accepted and have been promoted by the various trades and professions. It was bound to reach the journalist profession someday.
Proposals have been accepted for a voluntary press council to review the performance of the various media. Early in 1973, the Twentieth Century Fund announced that it had formed a National News Council to scrutinize the national press, including broadcasters, and investigate complaints from the public about fairness and accuracy. The core of the media council idea, according to the Fund, "is the effort to make press freedom more secure by providing an independent forum for debate about media responsibility and performance, so that such debate need not take place in government hearing rooms or on the political campaign trail."5
On the face of it, the News Council proposal sounds constructive and it’s certainly within the right of any voluntary organization to set itself up to monitor the press. But unless it’s very unusual, the Council will soon be captured and dominated by individuals who have an ax to grind. There will be the problem of monitoring the Council’s own fairness and accuracy at the same time it is supposedly examining these qualities in the media.
There is also the possibility (indeed, the probability) that the work of the Council will pave the way for some form of government supervision of the press. This is always the risk in voluntary efforts that are based on the idea of "cleaning up our own house before the government does it for us." The government is often unable to "clean anybody’s house," not even its own, but it does have the power to force outward compliance that gives an appearance of improvement. Voluntary programs never can hope to bring about total compliance in the way that compulsory programs do. It is not hard to predict that compulsory measures will appear more attractive if the voluntary efforts of the Council fail to bring the desired results in media performance.
The News Council is also another example of a disturbing trend, the establishment of "representative groups" who are supposed to act in the public interest. There are 15 members of the Council’s task force and, not surprisingly, there’s a person who supposedly represents every race, group, or class. As a rule, the representatives selected are prominent but not usually controversial. The theory seems to be that of giving everybody representation by selecting a member of his group or class.
One fallacy in this practice is that highly publicized members of a representative group do not always represent the people for whom they allegedly speak. Quite often, they are merely people who have been able to gain a certain prominence in a particular field or have access to a number of political figures. But it is a mistake to believe that such prominence means they can speak for all members of their race or group. It is always possible to find cross-currents of opinion in any ethnic or religious group. One prominent spokesman who "represents" blacks or Mexican-Americans may demand that newspapers conceal any racial or ethnic identifications in news stories. But other members of the same group may, for reasons of their own, feel that such identifications serve a constructive purpose. Their views will not get an airing in a typical panel of "representative groups."
• Demands are being made for "right of access." One of the latest bids for control over the press is the advocacy of "access to the press as a First Amendment Right." The proponent of this demand is a law professor named Jerome A. Barron, who argued quite convincingly in a law review article° that new laws are required to meet the changing conditions of modern times. Barron insists that technological and economic changes have made the First Amendment ineffective and inadequate as a means of implementing the free flow and distribution of new ideas. In fact, he believes that the Amendment is actually used by monopoly newspaper owners as a protective cover for refusing to publish unpopular views. He argues that there can be no real "marketplace of ideas" if there is no corresponding right to have one’s ideas published in major newspapers, particularly newspapers having monopoly status. He also deplores the profit-seeking aims of these newspapers and suggests that the owners are neglecting their true responsibilities when they publish bland and popular material while excluding articles of greater depth.
Change First Amendment
To provide access to the press, Barron wants definite changes in the present interpretation of the First Amendment. He believes that the Courts can make such change by extending their interpretation of the First Amendment to include right of access. Failing that, he proposes legislative change, a new law, that would have the same effect.
There are a number of fallacies and pitfalls in Barron’s proposal, which has been getting serious attention in intellectual circles. For one thing, he focuses on popular mass media, completely ignoring the diversity of other media that can often be useful to an aspiring writer or advocate of social change. A good example of the effectiveness of small-circulation media is the case of. Ralph Nader, who was virtually unknown a dozen years ago.
His earlier attacks on the auto industry were published in small-circulation journals before they were picked up by the popular press. In this case, the First Amendment was effective in giving Nader the right to publish his views, but it was up to Nader to prove that his ideas merited broader distribution. There is no way that the publishers of large circulation newspapers could have known in advance that Nader’s ideas would catch on with the public, just as there is no way of picking out the popular writers and advocates of tomorrow from among the hundreds who are now struggling to get their views accepted. With thousands of small newspapers and other publications available as a proving or testing ground, these writers cannot truthfully say they are excluded from print. Barron himself was able to get his arguments published in law review publications and thus became indentified with a certain viewpoint that is now getting serious national consideration. To put it another way, Barron’s success in getting his views known is an excellent answer to his own argument.
A Nightmare in Practice
The more disturbing problem is not the success or failure of the individual writer, but what really happens to First Amendment rights if "access to media" becomes a law. The Barron proposal is one of those arguments that sounds reasonable in theory but can become a nightmare in practice. He does not explain, for example, how equitable methods of providing access to the press can be developed without damaging the objectivity and effectiveness of newspapers. He does not really deal with the possibility that "access" laws in practice would turn out to be disguised forms of prior restraint. He fails to explain how "access" rights can be allocated when an unusually large number of groups are demanding desirable newspaper space for their own viewpoints.
Barron also evades the greatest danger of his proposal — the likelihood that it will result in newspapers being subjected to Federal regulation of the type now imposed on broadcasters. It is true that no regulatory body would be established simply by new rulings giving increased "access" to the media. But continuing dissatisfaction with access rights would certainly lead to the demand for some Federal body or communications czar to supervise the process of granting access. The result would be de facto regulation.
• Shortages, general increase in controls. Although they often represent themselves as public interest organizations, newspapers and other media are businesses which have the central purpose of producing earnings for their owners. There has been some attention focused on the business problems of a few leading publications and the failures of several popular magazines. In fact, however, many newspapers and broadcasting outlets are highly profitable, with earnings margins that would be envied by most manufacturers and retailers.
Being profit-seeking businesses, newspapers cannot escape the regulations and restraints that are being imposed on other privately-owned businesses. If the government continues to expand its regulation of business "in the public interest," it will expand its control over newspapers and various other media. Soon or late, the government will also involve itself in such matters as news content, fairness of news presentations, and the effect of news on personal behavior. It is becoming widely accepted that the government has the responsibility to regulate such matters, so it is also likely that the government will use all of its powers to carry out that responsibility.
This tendency to employ all of its powers to gain certain ends seems to be an accepted way of operating in American government, and probably any government. For example, people who are having trouble with the Executive Branch of the government may find themselves getting a sudden audit from the Internal Revenue Service, an audit that has nothing to do with suspected financial irregularity but may be only a form of harrassment. It is not hard to see that this form of harrassment could have infinite variations once the government gained considerable control over such matters as the allocation of newsprint, the location of newspaper plants, the hiring and firing of news personnel, pricing of advertising and other services, and performance in meeting pollution and environmental standards.
Reconsider the Marketplace
In the changing social climate of the 1970s, it is likely that additional forms of "back door press control" will be developed to supplement the trends discussed in this article. Back door press control, like most efforts of an indirect nature, is very difficult to detect. It usually arises as a hidden component of another proposal that seems socially desirable or reasonable. It seems reasonable, for example, to license professional people in the public interest. It is only upon closer examination that the licensing proposal is seen as an indirect form of control. And it is not always the government that uses this control for its own purposes. In an organization of licensed professionals, the majority can use licensing control as a means of bringing minority dissenters into line.
During the past few years — indeed, during the past few months — it has been made clear that government officials are not above using underhanded and even criminal methods in getting their way. Yet the problem of American government is not that a certain group of rascals came into office and used their powers for self-serving purposes. The problem is that government already had been given excessive powers and controls over people’s lives.
If newsmen are alarmed by the government’s growing power to control them they should take a fresh look at the kind of controls that are already mandated for business, industry, and professional groups. They should study the nature of the marketplace for goods and services, which is linked more closely than they care to admit to the marketplace for news and ideas.
There really can be no such condition as a completely regulated marketplace for goods and services without a corresponding attempt to control news and ideas. In fact, an effort to permit considerable freedom of the press eventually would become intolerable to those who have the responsibility for establishing order and compliance in other segments of society.
Businessmen who have squirmed under attacks by obviously "anti-business" newsmen should not take pleasure in the rising threats of back door press control. American society has already lost considerable freedom through an attitude of "it serves them right" or "they brought this regulation on themselves." It is unfortunate when the fist of tighter governmental control closes on any segment of society. But it is even more unfortunate that newsmen did not understand the nature of government regulation and control. It had to reach them someday, and it came in through the back door that was opened by regulating and controlling others.
1 John Peter Zenger, printer of the New York Weekly Journal, was jailed in 1734 on charges of seditious libel for labeling Governor William Cosby a tyrant and oppressor of the colony. A brilliant lawyer named Andrew Hamilton won Zenger’s acquittal in a trial by jury, effectively ending "seditious libel" as an instrument for press control. Harold L. Nelson and Dwight L. Teeter, Jr., Law of Mass Communications (The Foundation Press, Inc., Mineola, N. Y., 1969) pp. 23-26.
2 "Near vs. Minnesota involved a scandal sheet published in Minneapolis by J. M. Near and a partner who ran afoul of an extraordinary Minnesota law. The famous Gag Law provided that it was a public nuisance to engage in the regular, persistent publication of a malicious, scandalous and defamatory periodical. The state could step in, stop and permanently suppress such a publication. If a publisher disobeyed an injunction against his publishing, and resumed it, he could be punished for contempt of court. Under the law, Near was enjoined from continuing to publish his Saturday Press. He challenged the constitutionality of the law, and the United States Supreme Court reversed his conviction." Ibid., p. 409.
3 Associated Press report in The Jackson Citizen Patriot, Jackson, Michigan, March 11,1970, p. 3.
4 A Free and Responsive Press, Task Force Report for a National News Council, (The Twentieth Century Fund, New York, 1973), p. 14.
5 Ibid., pp. 3-5.
6 Barron’s proposal for right of access was thoroughly presented in the Harvard Law Review, Vol. 80:1641, 1967. (Harvard Law Review Association, Cambridge, Mass.) Similar articles by the same author have appeared in other publications.
7 For a variation of Barron’s argument, readers should consult The Rights of Americans, (Pantheon Books, New York, 1970); article beginning on p. 276, entitled, "The Right of Access to Mass Media," by John De J. Pemberton, Jr.