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date: 18 February 2019

Freedom of the Press

Summary and Keywords

According to the First Amendment of the US Constitution, Congress is barred from abridging the freedom of the press (“Congress shall make no law . . . abridging the freedom of speech, or of the press”). In practice, the history of press freedom is far more complicated than this simple constitutional right suggests. Over time, the meaning of the First Amendment has changed greatly. The Supreme Court largely ignored the First Amendment until the 20th century, leaving the scope of press freedom to state courts and legislatures. Since World War I, jurisprudence has greatly expanded the types of publication protected from government interference. The press now has broad rights to publish criticism of public officials, salacious material, private information, national security secrets, and much else. To understand the shifting history of press freedom, however, it is important to understand not only the expansion of formal constitutional rights but also how those rights have been shaped by such factors as economic transformations in the newspaper industry, the evolution of professional standards in the press, and the broader political and cultural relations between politicians and the press.

Keywords: press freedom, freedom of the press, First Amendment, censorship, Constitution, newspaper industry, journalism, political culture, national security, Bill of Rights

Introduction

The history of American press freedom is complicated, because freedom of the press is many things. It is a constitutional right, protected by the courts. It is a political ideal and a philosophical principle, central to American liberalism. And there is also, of course, an actual press, whose freedom has been constrained and exercised in various ways at different times.

To understand the history of press freedom, one needs to explore the interplay of these three factors. Press freedom has not developed in a straightforward or linear fashion. Americans may agree that they believe in “press freedom,” but what this phrase means has been controversial and has changed over time. While the First Amendment right to publish has expanded over time, its development was subject to contestation—many of the Supreme Court’s most cherished decisions, it is worth remembering, were not unanimous. And while the legal history of press freedom is important, both the law and practice of press freedom have also been shaped in important ways by such factors as the political economy of the newspaper industry, the sociology of journalism, and America’s broader political culture.

Two definitional clarifications are important at the outset. First, the language of the First Amendment distinguishes between “freedom of speech” and “freedom of the press.” But although there have been occasional efforts to argue that these two clauses embody distinct sets of rights—speech rights for all and specific rights for the press—the Supreme Court has treated them interchangeably. (In other words, there are no special protections for the press, and there has been no effort to distinguish the press from other forms of speech.) This article focuses on those sections of First Amendment jurisprudence that have been of particular importance to the press, but the story is not distinguishable from the broader story of free speech. Second, “the press” has evolved over time to include not only newspapers but also television, radio, and websites. Throughout the 20th century, however, the law of press freedom and the law of broadcast media were distinct subjects with distinct logics—broadcasters could be regulated in the public interest, but newspapers could not (the Internet, when it emerged, would be treated like the press).1 Where this distinction matters in what follows, this article focuses on print journalism.

The Colonial and Revolutionary Period

The contours of press freedom in the American colonies were shaped by English practice in two senses. First, the colonies inherited from England a limited legal right to press freedom. State regulation of the press took two forms in England and the early colonies. At first, a licensing system meant that all printing required prior state approval. In England, licensing ended in 1695, though it sputtered on unevenly in the colonies into the early decades of the 18th century. But even after licensing expired, a second form of regulation continued: seditious libel, or criticism of the government, remained a common law crime. Because it was a crime to undermine respect for the government, it did not matter if the criticism of the government was true or false. (If anything, a true criticism arguably did more to undermine respect for the government, making it a worse crime.) Press freedom, therefore, was only the liberty to publish without prior censorship and within narrowly drawn boundaries of legal propriety; publication beyond those bounds could be punished.2 As William Blackstone explained in his influential commentaries in the 1760s, freedom of the press “consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published.”3

At the same time, the colonies also inherited from England a vibrant intellectual tradition of radical dissent that proclaimed that the right to publish was an essential liberty of free peoples. And as newspapers began to emerge in the colonies—the first was published in 1690, and by 1735 there were fifteen—they increasingly criticized both censorship and the government. In the middle decades of the 18th century, for instance, American newspapers repeatedly reprinted the essays of John Trenchard and William Gordon (writing under the pseudonym of Cato) that declared that a free press was hostile to tyrannies.4

The clash between these two understandings of press freedom came to an early head in the famous libel trial of John Peter Zenger in 1735. Zenger’s paper, the New-York Weekly Journal, had published a series of articles critical of New York Governor William Cosby. For publishing the articles, which had been written by Cosby’s political rivals, Zenger was charged with seditious libel and spent nine months in jail awaiting his trial. According to the law of the day, the jury was supposed to determine only if Zenger had published the libelous statements. But one of Zenger’s lawyers, the prominent Philadelphian politician Andrew Hamilton, convinced the jury that because the criticisms of Cosby were true, they were not libelous. This novel interpretation of the law established no binding legal precedent, but it indicated a growing embrace of press freedom in the colonies. In the coming decades, while seditious libel remained on the books, prosecutions dried up, and the press exercised considerable liberty to criticize the government.5

In the revolutionary crises of the 1760s and 1770s, press freedom became intertwined with the cause of national independence. The Stamp Tax, for instance, fell heavily on printers, and the press criticized it as tyrannical for both political and economic reasons. Equally important, patriots relied on the press to criticize the English and mobilize the colonies into a nationalist independence movement. With the coming of independence, press freedom was embraced as an essential right. Ten states wrote constitutions guaranteeing a right to press freedom.6

When it was decided to add a Bill of Rights to the new federal constitution, a right to press freedom was included. Superficially, the language of the First Amendment is straightforward: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”7 But precisely what the drafters meant by these phrases remains unclear. Did this clause protect press freedom only from prior censorship, as in Blackstone’s limited definition? Or did it protect the press from some forms of post-publication punishment too? And if the latter, as seems most likely, what punishment for what crimes was acceptable? Although the language went through multiple drafts, we have almost no evidentiary record of the debates surrounding this process. James Madison’s first draft of the amendment, for instance, read that “the people shall not be deprived 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 inviolable.” The switch from the passive to the active voice had potentially large consequences. Rather than protecting press freedom from any form of deprivation, the First Amendment limits only Congress from abridging the press. It is unclear how intentional this change was. In fact, while historians and lawyers have expended considerable effort to determine the “original intent” of the drafters, the evidence is too thin, and the beliefs of the founding generation too fractious, to allow for definitive statements about their legal theory of press freedom. It was an abstract value, a political principle, and open to competing understandings. Significantly, however, it was now enshrined in both the political culture and the constitution.8

Press Freedom in the Republic

In practice, it is clear that early American theories of press freedom differed from modern understandings in several important respects. To begin with, the press was far more economically dependent on the state. Its profits were subsidized by favorable government postage rates, which lowered the costs of distribution to the public and, because newspapers could send free copies to each other, lowered the costs of news-gathering. Many newspapers, moreover, earned their income by working as government printers or party propagandists and were dependent on politicians and political developments for their livelihood. None of this was understood as an interference with press freedom, perhaps because this was state support of the press rather than “abridgement.” In any case, it created a favorable economic climate in which newspapers flourished. Between 1790 and 1835, the number of papers in the United States rose from 106 to 1,258.9

Early American theories of press freedom also held that there were limits to the right to publish; the right to a free press did not extend to the right to publish material that was harmful to the public good. The divisive issues were where those limits lay and who had the right to enforce them. These questions came to a head when the Federalist administration of John Adams passed the Sedition Act in 1798, which punished false, scandalous, or malicious writings about the government with fines of up to $2,000 and jail terms of up to two years. Ostensibly intended to protect the security of the government during the Quasi-War with France, in practice the bill was a partisan effort to censor the Republican opposition. Criticism of the president and Congress was illegal, but not criticism of the vice president, who happened to be Thomas Jefferson, the leading Republican politician. The Act was designed to expire the day before the next presidential inauguration; 25 Republican publishers were arrested, 15 were indicted, and 10 convicted under its terms. While the act’s proponents argued that it was a liberal version of the common-law crime of seditious libel because it allowed truth as a defense, in practice this had little effect, for those charged under the act bore the burden of proving the truth of their criticisms and political opinions, an almost impossible task. Lower courts applied it without raising questions about its propriety, and the Supreme Court never considered the law.10

Opposition came instead from politicians such as James Madison and Thomas Jefferson, who wrote resolutions criticizing the law as a violation of the First Amendment right to a free press. And the unpopularity of the law helped produce a backlash that swept Jefferson and the Republicans to power in 1800. Still, if Republicans believed that the Sedition Act interfered with press freedom, it was not because they believed that the press should be absolutely free to criticize the government. Rather, they believed that the federal government lacked the right to censor the press because that right belonged properly to the states. Thomas Jefferson put this most plainly in a letter to Abigail Adams in 1804: “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 right to do so.” In fact, when the Bill of Rights was first drafted, James Madison had included an amendment preventing the states from violating press freedom. But the Senate had eliminated it from the Bill of Rights.11

Over the course of the 19th century and into the first decades of the 20th, the substance of press freedom would therefore be largely determined at the state level. That meant that press freedom varied from jurisdiction to jurisdiction. But in general, the freedom of the press to publish was understood to have limits. (State constitutional guarantees of press freedom began to make this explicit in the early 19th century. New York’s Constitution of 1821, for instance, declared that citizens would be held “responsible for the abuse” of the right to free speech.) The substance of those limits was determined by political power. This meant that groups challenging entrenched social and political power found their press freedom limited by both legal and extra-legal coercion. As advocacy of slavery and state’s rights became more aggressive in the 1830s, for instance, southern states banned abolitionist literature, and individual slaveholders sued abolitionists for libel. (The broader dynamics of 19th century libel law are considered separately later in the article.) Efforts to ban abolitionist publications in the northern states were unsuccessful, but anti-abolitionist mobs suppressed abolitionist papers violently. The Illinois murder of the abolitionist Presbyterian minister and editor of the Alton Observer, Elijah Lovejoy, in 1837 was the most famous example. In the early 20th century, many states similarly barred the publication of anarchist literature advocating the overthrow of the state.12

By the late 19th century, even federal regulation of the press could be seen as compatible with press freedom. In the 1860s and 1870s, Congress passed laws barring “obscene” publications from the mail, a category that included basic birth control information. These anti-obscenity laws reflected a broader puritanical trend. By the time of the Civil War, twenty-one states and four territories had passed statutes barring obscenity. An 1865 anti-obscenity act was inspired by reports that Union soldiers were reading pornographic material, and in 1868 US courts enacted strict tests for obscenity adopted from Victorian England.13 Indeed, it was the pressure of war that most encouraged federal interference with freedom of the press. During the Civil War, interference with press freedom was sporadic and uneven. There was some censorship of the telegraph, some papers were excluded from the mails, and some military commanders made efforts to keep journalists away from combat zones. Hundreds of Democratic newspapers found themselves shut down for short periods by the US military or by mob violence. Still, there was no legislated censorship, and in practice the press exercised considerable freedom to criticize Lincoln, the war effort, and emancipation.14

During World War I, the Wilson administration introduced more formalized censorship of the press through the Espionage Act of 1917 and the Sedition Act of 1918. Combined, the acts made it illegal to interfere with the draft or the war effort or to criticize the government, the army, or the Constitution. There were some 2,000 prosecutions, yielding approximately 1,000 convictions. The postmaster general was also given the legal authority to deny mailing privileges to publications advocating treason, insurrection, or resistance to the law, a decision with serious economic consequences for affected publications.15

The rising tide of censorship produced a new network of activists and intellectuals committed to stronger rights to speech and publication. In 1902 free-thinker Theodore Schroeder founded a Free Speech League. In 1917 a National Civil Liberties Bureau emerged from the American Union Against Militarism, soon renamed the American Civil Liberties Union (ACLU). And in 1918 Harvard Law Professor Zechariah Chafee Jr. began a series of influential publications exploring the history and law of the First Amendment and arguing for a stronger right to free speech. Discomfort with the excessive censorship of the war had produced the modern civil liberties movement, setting the stage for a new consideration of the meaning of the First Amendment.16

The Birth of the Modern First Amendment

In the spring of 1919, when the Supreme Court heard appeals of the wartime speech convictions, it engaged in its first meaningful consideration of the First Amendment. The result was not a victory for civil libertarians. In three decisions handed down in March, the court unanimously upheld the constitutionality of the Espionage Act, arguing, in the famous words of Oliver Wendell Holmes, that the right to free speech did not extend to speech that had a bad tendency, such as falsely shouting fire in a theater. Equating criticism of the war with such frivolous and harmful speech, the court upheld the convictions of Charles Schenck for printing leaflets encouraging resistance to the draft, Eugene Debs for a speech critical of the war, and Jacob Frohwerk, editor of a small German-language newspaper, for publishing articles critical of the war effort. The First Amendment, it seemed, provided little protection from censorship.17

But over the summer of 1919 Holmes’s decisions were criticized by civil libertarians, both in print and in person. By the time the aging justice returned to the Court in the fall of 1919, he had embraced a more liberal theory of free speech. In his landmark dissent in the Abrams case, Holmes argued that even radical pamphleteers attempting to interfere with war production had the First Amendment right to speak and publish. Democratic dialogue and the search for truth, he now held, required a “free trade in ideas.” The dissenting opinion, which was joined by Justice Louis Brandeis, was cold comfort to the Abrams defendants, as the majority of the court applied Holmes’s earlier Schenck precedent to uphold their convictions. But Holmes and Brandeis would repeatedly articulate this expansive right to speech in their dissenting opinions in the coming years. And over decades, as the majority of the court began to embrace this more robust First Amendment, the First Amendment expanded to protect all sorts of speech and publication.18

The press benefited from the general expansion of First Amendment rights in this period, just as it had suffered when the Court had limited the First Amendment, because the Court made no distinction between the right to free speech and the right to free press, treating them interchangeably. Thus, as the press sought to expand its rights to publish, it also thereby contributed to the general growth of speech rights for all Americans.

In the interwar period, the central case for the press was Near v. Minnesota, decided in 1931. In 1927, the Saturday Press, a small, scurrilous and anti-Semitic newspaper published by Jay Near, was barred from publishing under a Public Nuisance Law that allowed a judge to perpetually enjoin a newspaper or magazine from publication if it was defamatory, scandalous, or obscene. Near appealed the decision to the Minnesota Supreme Court, which found the law to be compatible with press freedom because it only regulated licentiousness, not true liberty of the press. With support from the ACLU and Chicago Tribune publisher Robert McCormick and his newly formed American Newspaper Publisher Association’s Committee on Freedom of the Press, Near appealed his case to the Supreme Court. There, Near won when the Court decided in a close 5–4 decision that the Minnesota law violated the First Amendment. It was a landmark decision for the press and for the First Amendment. By incorporating the press clause through the Fourteenth Amendment, the court extended protections for the right to publish against state governments, limiting the rights of the states to police the press. (The court had been moving in this direction earlier and had incorporated the First Amendment in dicta in the 1925 Gitlow case. But the Near case and the simultaneous Stromberg decision were the first times that the Court ruled that state laws violated the First Amendment.) In Chief Justice Charles Evans Hughes’s majority opinion, it declared in no uncertain terms that even scandalous or false publication had to be protected from prior restraint.19

Still, the Near decision left open two important questions for freedom of the press. First, Hughes suggested that while prior restraints were unconstitutional, it was still acceptable to punish a newspaper after publication through the libel laws. Second, even as he extended the right to publish, Hughes also suggested that prior restraints might be constitutional if they were needed to protect national security during war. After World War II, as the press participated in, and enjoyed, the general expansion of First Amendment rights, its ability to criticize public officials and to publish state secrets would become central issues.

Libel, Privacy, and Press Freedom

The right to publish has always been weighed against the rights of individuals to privacy and reputation. As the legal balance between these rights has shifted over time, the freedom of the press has evolved. Perhaps more important than changes in the law of libel and privacy, however, has been the changing professional practice of the press. The rise and fall of professional norms has shaped the press’s willingness to publish material that might be considered false, libelous, or an invasion of privacy. Self-restraint, professionalism, and responsibility of the press also have shaped the law, as they have influenced the willingness of legislators and judges to defer to the press’s own assessment of what it should publish.

Until the 1960s libel law was determined at the state level and was not seen to involve First Amendment issues. In both statutes and the common law, the right to publish did not extend to the defamation of individuals, which was seen to lie beyond the boundaries of press freedom as a form of licentiousness that harmed democratic dialogue and governance. The viciously partisan press of the early years of the 19th century produced an upsurge in civil libel suits. What constituted libel varied across jurisdictions, but many states allowed the publication of truthful criticisms of public individuals provided they were “published with good motives and for justifiable ends.” This defense had been articulated by Alexander Hamilton in an 1804 New York trial involving the trial of Federalist journalist Harry Croswell, who had criticized President Thomas Jefferson; it was a limited concession to press freedom, because it required publishers to prove the truth of their stories and justify their intent in publishing.

Still, in the middle decades of the 19th century, libel charges declined. Between 1865 and 1876 there were fewer than twenty reported libel prosecutions in the country. While these years saw some minor liberalizations of libel law in some jurisdictions, the drop in libel prosecutions was less a function of changes to the law than changes in the political culture, which had become accustomed to partisan accusations and sought to counter them not through prosecution but through counter-publication.

With the rise of the scandal-driven yellow press in the late 19th century, libel charges increased once again. Standards for both criminal and civil libel remained uneven and varied across jurisdictions. But although the law provided limited protections for newspapers in many jurisdictions, the impact of these laws on the practice of press freedom remains unclear. As late as 1964, twenty-seven states still had criminal libel statutes that only exempted true statements published with good intent. On the one hand, it seems that the existence of the laws led to newspaper conservatism. Newspapers used in-house libel censors to remove potentially libelous comments, and the threat of libel action discouraged certain sorts of reporting. On the other hand, it seems that many newspaper publishers considered the threat of libel action to be the cost of doing business and proceeded with publication according to their ethical sense of their duties to the public. It also seems likely that the complexity of the libel laws aided the newspapers, whose lawyers became familiar with their technicalities and loopholes, whereas those bringing libel charges were likely to be less adept at navigating the law. A 1947 study found that while the libel laws looked threatening to the press on paper, most editors thought they worked well enough in practice.20

In 1964, however, the Supreme Court fundamentally transformed libel law by establishing an expansive constitutional right to publish defamatory or critical stories about officials, even when those stories were false. The case, New York Times v. Sullivan, was the result of the aggressive use of libel laws by Alabama amidst the struggle over civil rights. The New York Times had published an advertisement by a civil rights defense group that criticized the treatment of civil rights protestors in Montgomery, Alabama. While the advertisement did not name L. B. Sullivan, a city commissioner of Montgomery, he claimed that it implicated him and that it was libelous because it contained false statements. (The ad did make some minor factual errors. It misstated the number of times Martin Luther King Jr. had been arrested, suggested that protesting students had been locked in a campus dining hall when they had not, and misidentified the song that students were singing during a protest.) Sullivan was awarded $500,000, the largest libel award in Alabama history, and the state’s supreme court upheld the decision. Meanwhile, other Montgomery commissioners also sued the New York Times, which appeared to owe $3 million in damages. Libel laws, long threatening on the books if not in practice, now seemed to pose a real challenge to press freedom. Public officials in three other southern states began preparing seventeen other libel suits against the media for their civil rights coverage, claiming damages of over $288 million.

The Supreme Court unanimously overturned the decision, outlining a new theory of the need for “uninhibited, robust and wide-open” debate about public affairs. Because liability for libel threatened to chill such debate, the Court set a high bar for public officials bringing libel claims. They now had to prove that the statements were false and that they also had been published with knowledge that they were false or with reckless disregard as to their truth. The next year, in Garrison v. Louisiana, the Supreme Court extended the Sullivan test to criminal libel laws. Libel of public officials had been removed from state jurisdiction and been radically liberalized in the process. In subsequent years, libel of private individuals was also liberalized, albeit to a lesser extent. If a private individual was libeled on a matter of public relevance, a concept the courts have applied broadly, they needed to show that the story was false and that the newspaper had been negligent in publishing it. Much subsequent jurisprudence has turned on the tricky issue of determining who is and is not a public figure. But the overall trend has been clear. Since the 1960s the press has enjoyed an expansive right to publish what once would have been libel. In practice, of course, even winning a libel case involves court costs, which remains a countervailing factor in the newspaper’s decision to publish.21

The press’s right to publish private information about individuals has followed a roughly similar pattern. The modern right to privacy was first outlined in an influential legal article written by Louis Brandeis and Samuel Warren in 1890. In many ways it was a reaction to the rise of the irreverent and scandal-obsessed yellow press. Warren was closely related to members of the Grover Cleveland administration, which had been subject to much gossip. By the middle of the 20th century, however, the court was reluctant to allow individuals to sue the press for invasion of privacy, holding that a great deal of ostensibly private information was newsworthy and deserving of First Amendment protection. The limits on what was appropriate to publish were thus determined by the press, which in these years was increasingly consolidated and organized as a big business and a profession. In the second half of the 20th century, the press had the freedom to publish all sorts of private information, including the names of rape and murder victims. There is some evidence to suggest that the rise of a new generation of scandalous online publications in the early 21st century has made courts more likely to dismiss the news judgments of the press and to begin to enforce a more robust right to privacy. In 2016, famously, the online website Gawker was forced to pay Hulk Hogan $140 million in damages for violating his privacy by publishing a sex tape. The size of the penalty drove the website out of business.22

Press Freedom and National Security

The post–World War I rise of the First Amendment created a difficult problem for subsequent wartime administrations: how to protect information vital to national security without interfering with the democratic right to press freedom? The issue was first confronted during World War II, which produced a variety of compromises. There were almost no criminal prosecutions for speech and publication during the war and nothing like the repressions of the First World War. While there was formal censorship of the press in war zones, the bulk of the press was legally free to publish what it liked. But an Office of Censorship promoted a culture of “voluntary self-censorship” that successfully encouraged journalists to patriotically self-censor a wide variety of information that might harm the war effort, and the wartime administration made efforts to develop new legal and administrative mechanisms to classify information within the government, preventing it from ever reaching the press.23

With the coming of the Cold War, these developments intensified. During the McCarthy era, journalists found themselves subject to a variety of political and professional pressures to avoid any association with radicalism and to avoid harming national security. Between 1952 and 1957 over 100 journalists were called before anti-subversive congressional committees to testify about their political beliefs. Fourteen journalists were fired by their papers as a result of these hearings, while others were reassigned to lowly jobs like obituary writing. Still others were hounded and red-baited. The broader culture of suspicion and accusation posed real challenges to press freedom.24

At the same time, amidst fears of Soviet espionage, efforts to secure secret information accelerated. In 1951 Harry Truman issued Executive Order 10290, which established for the first time a permanent classification regime across all agencies of the government. The classification system would be tinkered with by subsequent administrations, but its basic logic remains unchanged until the present. Government employees stamp information whose disclosure might harm national security as secret, and under the Espionage Act it then becomes illegal to disclose that information to those not entitled to see it. The institutional apparatus incentivizes overclassification. There are penalties for underclassifying, but none for overclassifying, and the amount of information kept secret grew exponentially over the second half of the 20th century.25

A small group of journalists concerned about the impact of these developments on press freedom soon organized themselves as a freedom of information movement. The main success of their activism was the passage in 1966 of the federal Freedom of Information Act (FOIA), an amendment to the Administrative Procedures Act that gave all citizens the right to request information from the government and the right to go to court to enforce that right. But the 1966 act, which was amended in 1974, was an uneven tool for transparency. It exempted nine types of information from its provisions, including information relating to national security and information relating to internal policy deliberations. Courts have been highly deferential to governments citing these exemptions, and FOIA requests have often been bogged down by delays. FOIA has thus been used more successfully by corporations and historians than by journalists. Still, the federal FOIA law, as well as FOIA laws at the state level, provided all citizens important rights to access political information, even if it has not challenged national security secrecy.26

The primary way in which the press has been able to access classified information has been through leaks and background briefings. The legality of publishing classified information was determined when Daniel Ellsberg and Anthony Russo leaked the top secret Pentagon Papers to the New York Times and the Washington Post in 1971. The Nixon administration sought to enjoin publication of the documents, claiming the publication of the classified history of the war in Vietnam would harm national security. But in a complicated 6–3 decision in the New York Times v. U.S., the Supreme Court ruled that the First Amendment protected the press from being enjoined from publishing secret information unless publication would immediately cause grave and irreparable damage. That high standard effectively ensured newspapers the right to publish secrets without prior censorship, and the only subsequent effort to enjoin a publication on these grounds occurred when the Progressive published an article on the science of the H-bomb, a prosecution quickly abandoned by the state. The Pentagon Papers decision was more ambiguous about whether newspapers could be subsequently charged under the Espionage Act, but in practice this has never happened, and the press has enjoyed the right to publish secret information.27

On the other hand, the law has not protected the rights of government employees to leak classified information to the press. The trial of Daniel Ellsberg and Anthony Russo for leaking the Pentagon Papers was dismissed due to government malpractice (Nixon had created the Plumbers, later of Watergate fame, to break into Ellsberg’s psychiatrist’s office). But while Ellsberg and Russo went free, prosecutions of others for leaking increased in the late 20th century. In 1985 naval intelligence analyst Samuel Morison became the first leaker to serve time under the Espionage Act. Confronted by new forms of digital leaking and publication, the Obama administration charged at least seven individuals with Espionage Act violations, most famously Chelsea Manning, who was sentenced to thirty-five years in jail for providing classified information to WikiLeaks.28

To reconcile the twin desires for national security and press freedom, American law has therefore produced an unusual balancing act: the press has the legal right to publish classified information if it receives it, but leakers lack the legal right to provide classified information to the press. (While there were efforts in the 1970s to argue that the First Amendment provided the press with special rights to access information otherwise unavailable to the public, the courts rejected those arguments.29) While formally protective of the free press, this legal balancing act clearly discourages leaks of secret information. Moreover, social, political, and professional pressures also disincentivize government officials from leaking information without the approval, explicit or tacit, of their superiors.30

To protect sources from retribution and therefore increase the likelihood that it will receive such disclosures of information, the press has developed an ethical practice of maintaining the anonymity of sources. It has also sought to develop legal protections of this practice, claiming that there should be a “journalist’s privilege” similar to the privilege of lawyers or doctors that would protect them from disclosing their sources in court. Efforts to establish this privilege have been uneven. Several attempts to pass a federal journalists shield law have been unsuccessful, and in Branzburg v. Hayes, the Supreme Court ruled in 1972 that the First Amendment implies no such privilege. Still, newspaper industry lawyers were subsequently successful in massaging the ambiguities of the complex 5–4 ruling to develop the privilege in practice. While there remains no federal privilege, a situation clarified in 2005 when the New York Times reporter Judith Miller went to jail for refusing to name the official who had leaked the identity of CIA operative Valerie Plame, every state except Wyoming currently recognizes a journalist’s privilege either by statute or court decision.31

More broadly, the relationship between leaks and press freedom remains controversial. On the one hand, leaks are habitual and much information finds its way into the press as a result of ordinary politics.32 On the other hand, a reliance on leaks and inside tips creates press dependence on officials and anonymous sources, which can lead to government manipulation of the news (as in the selective leaks of intelligence in the lead-up to the war in Iraq), to journalist self-censorship to curry access, and to public inability to ascertain the accuracy of leaked information, or the agendas of leakers. And in a broader sense, many critical media scholars suggest that the culture of objectivity and journalist dependence on government sources of information, either official or unofficial, undermines the autonomy of the free press and makes it a mouthpiece for a narrow range of government views.33

The relationship between access and press freedom has been particularly fraught in the context of war-reporting, especially in the wake of Vietnam. Although press coverage of the Vietnam War was much less hostile than is often remembered, political and military officials sought to limit press access to subsequent wars. The media were barred from combat areas during the 1983 invasion of Grenada. During the invasion of Panama in 1989 and the first Gulf War in 1991, the media were organized in pools that reported on the war under close supervision by the Defense Department. Beginning with the interventions in the former Yugoslavia, and more famously during the wars in Iraq and Afghanistan, journalists were embedded with combat units, providing them access to war zones but raising difficult questions about the perspective, objectivity, and independence of war coverage. As warfare continues to evolve in the era of the drone, questions about access are likely to remain complicated.34

The Newspaper Industry and the Economics of Press Freedom

As the metaphor of the “free market of ideas” reminds us, America’s free press is an economic enterprise. The economics of the newspaper business therefore play an important role in determining the freedom of the press. Over the course of the 20th century, the press has undergone profound economic changes, which have had important, if controversial, consequences for freedom of the press.

The printing press of the revolutionary era was not radically different from the first press invented by Gutenberg centuries earlier. But over the 19th century, the press was transformed technologically and economically. As newly urban, mass markets of literate Americans emerged, steam power and a number of other technological innovations were applied to the printing of newspapers. This expanded the potential market of newspaper readers, but it also made the technology required to reach those readers more expensive, requiring new forms of investment and new streams of revenue. Taking part in the rise of the modern consumer and industrial economy, newspapers became increasingly dependent on advertising revenues and ownership by wealthy publishers.35

The result was an expansion in newspaper circulation but also an increasing concentration in the ownership of newspapers. Advertisers preferred advertising in the paper with the largest circulation, which tended to starve smaller newspapers of revenue. As a result, competition in the newspaper industry declined in the 20th century. Between 1910 and 1960, the number of cities with competing newspapers fell from 689 to 60. Chain newspapers began to emerge, and by the mid-1980s they controlled 45 percent of the nation’s circulation. Despite the boom in population, the number of papers in the nation fell over the course of the 20th century. In fact the nation had its highest number of newspapers in 1909.36

Throughout the 20th century and particularly in the Progressive and New Deal eras, the decline of newspaper competition was seen by some (particularly those on the left) to pose real challenges to press freedom. The consolidation of the newspaper industry seemed to limit the range of voices in the free market of ideas. Critics like Upton Sinclair, George Seldes, Harold Ickes, and others argued that if the press was owned by a small class of newspaper barons and was dependent on capitalist advertisers for revenue, then it could not be truly independent. As press critic A. J. Liebling put it, “freedom of the press belongs only to those who own one.”37

There were few efforts to counteract the consolidation of the newspaper industry, however, because any form of government intervention was seen as a dangerous threat to freedom of the press. Any form of regulation that interfered with editorial content was clearly understood to be a violation of the First Amendment. For this reason, in 1974 the Supreme Court declared unconstitutional “right of reply” laws that would force monopoly papers to publish alternative voices.38

Whether government regulation of the newspaper industry that avoided the editorial process also violated the First Amendment was a tricky question. On the one hand, the Supreme Court ruled that taxes that discriminated against particular newspapers were unconstitutional.39 On the other, it has repeatedly ruled that the First Amendment provides no protection from generally applicable regulations if they do not interfere with the editorial process. In a 5–4 decision in 1973, for instance, the Court decided that a ban on gender-specific advertising did not interfere with press freedom.40 Between those two principles lay a large gray area. In 1945, when an anti-trust action was brought against the Associated Press (AP) for unfairly limiting subscriptions to its wire service, a complicated 5–3 decision suggested that the First Amendment did not automatically protect the newspaper industry from anti-trust law but also warned that only narrow forms of anti-trust action would be acceptable.41

Such legal discussions were less important than a broader political belief that state regulation of the newspaper industry was an interference with the free press. It was these political arguments, not a Supreme Court decision, that defeated New Deal efforts to regulate the newspaper industry under the National Recovery Act or to pass a truth-in-advertising bill. After World War II, despite the AP decision and ongoing newspaper consolidation, there was little use of anti-trust law. In the late 1960s, when an anti-trust suit successfully blocked the merger of two Arizona papers into what was called a Joint Operating Agreement (JOA), Congress quickly passed a Newspaper Preservation Act to exempt JOAs from the anti-trust laws.42

The lack of state regulation of the press over the course of the 20th century stands in stark contrast to its robust regulation of the broadcast media. After the 1930s, the Federal Communications Commission regulated both the content and the ownership of television and radio stations. At around the same time the US Supreme Court issued its ambivalent ruling in the AP anti-trust case, it ruled that anti-trust action was appropriate for the radio industry. And at around the same time that the Supreme Court rejected a right of reply rule for the press, it upheld the constitutionality of a right of reply rule for the broadcast media. Such regulations were justified because the broadcast spectrum was understood to be limited in a technological sense, requiring some allocation. As a result, in the middle decades of the 20th century, the law of press freedom and broadcast media law developed along separate tracks, with the press proceeding in a much more laissez-faire direction. (A rare point of intersection was cross-media ownership laws, which followed the broadcast regulatory model, a distinction that has eroded in the late 20th century as the broadcast media has been deregulated.)43

In the absence of regulation, the newspaper industry continued to consolidate in the late 20th century. Advertising continued to flow to monopoly newspapers and computerized printing once again increased both efficiencies of scale and the capital requirements of newspaper publishers. As smaller newspapers went out of business, chain ownership increased. In the 1970s many newspapers began to trade their stocks publicly, creating new pressures to maintain high profits.44

The impact of these economic developments on the practice of press freedom is controversial and hard to measure. On the one hand, these profitable and economically powerful newspapers had money to invest in high-quality journalism. On the other hand, the quest for profits did not necessarily encourage public-interest journalism, and there were persistent suggestions that news content was tailored to avoid displeasing advertisers.45

Less controversial and more important in the long run was the fact that the newspapers had developed a business model that required a high rate of profit and depended heavily on advertising revenues. In the 2000s the rise of the Internet undermined advertising revenues, which fell from $37.8 billion in 2008 to $19.9 billion in 2014. A new round of firings and newspaper closures occurred, and the number of journalists employed in the nation fell from 56,400 in 2000 to 32,900 in 2014. The collapse of the economic model of the newspaper industry in the early 21st century posed a new, as-yet-unresolved, challenge for freedom of the press.46

Discussion of the Literature

The historiography of press freedom is chronologically uneven, focused more on the 18th and 20th centuries than the 19th. And it is often divided into discrete fields: legal histories of First Amendment doctrine, civil liberties activism, or detailed case studies of important Supreme Court decisions; political and intellectual histories of the media and the public sphere; and histories of the newspaper industry and the profession of journalism, often produced by scholars in journalism or communications schools. The best scholarship explores how press freedom was shaped at the intersection of these fields, though there has been less dialogue between them than one might hope.

Chronologically, the historiography of press freedom is best developed for the colonial and revolutionary period, in part due to the search for the “original meaning” of the First Amendment. The scholarly debate over press freedom in these years was energized by the publication in 1960 of Leonard Levy’s Legacy of Suppression, which argued that the founding fathers had done little to advance press freedom in either law or theory. Subsequent scholarship, focusing on a wider source base and much research in the newspapers of the time, found both more robust defenses for press freedom and much evidence for press freedom in practice. In 1985, Levy revised his account in light of this research. While he remained more critical of the limits of early American press freedom than most, the title of the work—The Emergence of a Free Press—indicated his retreat from his earlier position.

The literature on the 19th century remains underdeveloped, in large part because legal scholars tend to focus on the history of the First Amendment. But national developments were less important to press freedom in these years than the various legal regimes of the states (with important exceptions, such as the problem of press freedom during the Civil War). Some subjects have come in for more detailed study at the state level, such as the history of libel, but in general there is a need for more research on the history of press freedom across these many jurisdictions. And while we have fascinating studies of both 19th-century debates over free speech, on the one hand, and the history of newspaper politics on the other, there has been less work done in developing an overarching account of the freedom of the press, and its limits, in the 19th century.

The 20th-century historiography is more robust, though it is particularly divided between fields. There is a vast literature on the modern First Amendment, primarily produced by legal scholars and legal historians. Focused on the rise of speech-protective jurisprudence in the courts, this literature focuses on the history of speech rights in the courts and treats the development of press rights as a subsidiary part of this broader story. Histories of the First Amendment have, in the past, tended to Whiggish or triumphalist accounts of the 20th-century rise of free speech protections. Recently, however, legal historians such as Mark Graeber, Jeremy Kessler, Laura Weinrib, and others have engaged in more critical interrogations of the history of speech rights. There is also a vast literature on the newspaper and media industries, on the culture of political debate, on the history of particular papers and journalists and news events, and on the sociology of journalism.

Primary Sources

For First Amendment jurisprudence, the obvious place to begin is with the published decisions (available in multiple databases). Legal commentary and analysis of the jurisprudence is in abundant supply in the law journals, searchable through Hein Online and other databases. Those interested in further research into particular cases could also consult the Records of the Supreme Court available in Record Group 267 at the National Archives 1, in Washington, DC.

Invaluable insight into the history of the newspaper industry, and the controversies about press freedom in both theory and practice, can be found in professional and industry publications: e.g., Editor and Publisher, the weekly trade press of the newspaper industry; The Guild Reporter, the publication of the Newspaper Guild, the union of journalists; Quill, the publication of the professional journalism society; and Problems in American Journalism, the American Society of News Editors’ publication. Unfortunately, these sources are not digitized and are rarely indexed. More accessible are journals put out by universities, especially the Columbia Journalism Review, Journalism Quarterly, and Nieman Reports. Textbooks and ethics handbooks for journalism schools are also an excellent source for professional ethics and practical problems of press freedom.

The papers of some journalists, publishers, and newspapers are available in archives in various places. Though access is uneven, they may provide an excellent source on particular problems and controversies. Memoirs provide another important source for the history of journalism.

Finally, and obviously, one can consult the published product. An increasing number of historical newspapers are being digitized at Proquest, Chronicling America, and America’s Historical Newspapers.

Further Reading

Anderson, David A. “The Origins of the Press Clause.” UCLA Law Review 30 (1983).Find this resource:

Baldasty, Gerald J. The Commercialization of the News in the Nineteenth Century. Madison: University of Wisconsin, 1992.Find this resource:

Bennett, Lance. “Toward a Theory of Press-State Relations in the United States.” Journal of Communication 40 (1990): 103–127.Find this resource:

Bollinger, Lee. Images of a Free Press. Chicago: University of Chicago Press, 1991.Find this resource:

The Commission on Freedom of the Press. A Free and Responsible Press: A General Report on Mass Communication: Newspapers, Radio, Motion Pictures, Magazines, and Books. Chicago: University of Chicago Press, 1947.Find this resource:

Curtis, Michael Kent. Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History. Durham, NC: Duke University Press, 2000.Find this resource:

Davies, David R. The Postwar Decline of American Newspapers, 1945–1965. Westport, CT: Praeger, 2006.Find this resource:

Emery, Michael, Edwin Emery, and Nancy L. Roberts. The Press and America: An Interpretive History of the Mass Media. Boston: Allyn & Bacon, 2000.Find this resource:

Gajda, Amy. The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press. Cambridge, MA: Harvard University Press, 2015.Find this resource:

Halberstam, David. The Powers That Be. New York: Knopf, 1979.Find this resource:

Lebovic, Sam. Free Speech and Unfree News: The Paradox of Press Freedom in America. Cambridge, MA: Harvard University Press, 2016.Find this resource:

Levy, Leonard W. The Emergence of a Free Press. New York: Oxford University Press, 1985.Find this resource:

Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. New York: Random House, 1991.Find this resource:

Nerone, John C. Violence Against the Press: Policing the Public Sphere in U.S. History. New York: Oxford University Press, 1994.Find this resource:

Rabban, David M. Free Speech in its Forgotten Years. New York: Cambridge University Press, 1997.Find this resource:

Rosenberg, Norman L. Protecting the Best Men: An Interpretive History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986.Find this resource:

Schudson, Michael. Discovering the News: A Social History of American Newspapers. New York: Basic Books, 1978.Find this resource:

Smith, Jeffrey A. War and Press Freedom: The Problem of Prerogative Power. New York: Oxford University Press, 1999.Find this resource:

Starr, Paul. The Creation of the Media: Political Origins of Modern Communications. New York: Basic Books, 2004.Find this resource:

Stone, Geoffrey R. Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism. New York: W. W. Norton, 2004.Find this resource:

Notes:

(4.) David A. Anderson, “The Origins of the Press Clause,” UCLA Law Review 30 (1983); and David M. Rabban, “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37 (1985): 795–856.

(5.) Richard Kluger, Indelible Ink: The Trials of John Peter Zenger and the Birth of America’s Free Press (New York: W. W. Norton, 2016).

(6.) Richard Buel Jr., “Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760–1820,” in The Press and the American Revolution, ed. Bernard Bailyn and John B. Hench (Boston: Northeastern University Press, 1980), 59–98; David Waldstreicher, “Rites of Rebellion, Rites of Assent: Celebrations, Print Culture, and the Origins of American Nationalism,” Journal of American History 82 (1995): 37–61; and Anderson, “The Origins of the Press Clause.”

(7.) Anderson, “Origins of the Press Clause.”

(8.) Anderson, “Origins of the Press Clause”; and Thomas I. Emerson, “Colonial Intentions and Current Realities of the First Amendment,” University of Pennsylvania Law Review 125 (1977): 737–738.

(9.) Starr, Creation of the Media, 84–94; and Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1995).

(11.) Levy, Emergence of a Free Press, 258–262, 307; Anderson, “Origins of the Press Clause,” 483, 507; Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998), 22; and David Yassky, “Eras of the First Amendment,” Columbia Law Review 91 (1991): 1712.

(12.) Margaret A. Blanchard, “Filling in the Void: Speech and Press in the State Courts Prior to Gitlow,” in The First Amendment Reconsidered: New Perspectives on the Meaning of Freedom of Speech and Press, ed. Bill F. Chamberlin and Charlene J. Brown (New York: Longman, 1982), 18, 27; Curtis, Free Speech, The People’s Darling Privilege, 117–271; and Linda Cobb-Reiley, “Aliens and Alien Ideas: The Suppression of Anarchists and the Anarchist Press in America, 1901–1914,” Journalism History 15 (1988): 50–59.

(13.) Starr, Creation of the Media, 231–250.

(14.) John C. Nerone, Violence Against the Press: Policing the Public Sphere in U.S. History (New York: Oxford University Press, 1994), 111–127; Stone, Perilous Times, 79–134; and Harold Holzer, Lincoln and the Power of the Press: The War for Public Opinion (New York: Simon & Schuster, 2014).

(15.) Stone, Perilous Times, 135–234; Christopher Capozzola, Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (New York: Oxford University Press, 2008), 144–172; and Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: W. W. Norton, 1979).

(16.) Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: W. W. Norton, 1979); and David M. Rabban, Free Speech in Its Forgotten Years (New York: Cambridge University Press, 1997).

(17.) Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204, at 208–209 (1919); and Debs v. United States, 249 U.S. 211 (1919).

(18.) Abrams v. United States, 250 U.S. 616 (1919); Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Viking, 1987); and Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (New York: Metropolitan Books, 2013).

(19.) Near v. Minnesota, 283 U.S. 697 (1931); Fred W. Friendly, Minnesota Rag: Corruption, Yellow Journalism, and the Case that Saved Freedom of the Press (Minneapolis: University of Minnesota Press, 1981); Paul L. Murphy, “Near v. Minnesota in the Context of Historical Developments,” Minnesota Law Review 66 (1981); and Christopher M. Finan, From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America (Boston: Beacon Press, 2007), 109–128.

(20.) Alfred H. Kelly, “Constitutional Liberty and the Law of Libel: A Historian’s View,” The American Historical Review 74 (December 1968); and Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel (Chapel Hill: University of North Carolina Press, 1986).

(21.) New York Times v. Sullivan, 376 U.S. 254 (1964); Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Random House, 1991); and Gene Roberts and Hank Klibanoff, The Race Beat: The Press, the Civil Rights Struggle and the Awakening of a Nation (New York: Knopf, 2006), 234, 357.

(23.) Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America (Cambridge, MA: Harvard University Press, 2016), 111–137; and Michael S. Sweeney, Secrets of Victory: The Office of Censorship and the American Press and Radio in World War II (Chapel Hill: University of North Carolina Press, 2001).

(24.) Lebovic, Free Speech and Unfree News, 157–161; and Edward Alwood, Dark Days in the Newsroom: McCarthyism Aimed at the Press (Philadelphia: Temple University Press, 2007).

(25.) Lebovic, Free Speech and Unfree News, 164–189; Timothy L. Ericson, “Building Our Own ‘Iron Curtain’: The Emergence of Secrecy in American Government,” The American Archivist 68 (2005); and Report of the Commission on Protecting and Reducing Government Secrecy, S.Doc 105–2, 1997.

(26.) Lebovic, Free Speech and Unfree News, 164–189; Michael Schudson, The Rise of the Right to Know: Politics and the Culture of Transparency, 1945–1975 (Cambridge, MA: Harvard University Press, 2015), 28–63; and Herbert N. Foerstel, Freedom of Information and the Right to Know: The Origins and Applications of the Freedom of Information Act (Westport, CT: Greenwood, 1999).

(27.) New York Times Co. v. United States, 403 U.S. 713 (1971); David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (Berkeley: University of California Press, 1996); and Erwin Knoll, “The H-Bomb and the First Amendment,” William and Mary Bill of Rights Journal 3 (1994): 705–714.

(28.) Melville B. Nimmer, “National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case,” Stanford Law Review 26 (1974): 311–333; Geoffrey R. Stone, Top Secret: When Our Government Keeps Us in the Dark (Lanham, MD: Rowman & Littlefield, 2007); Heidi Kitrosser, “Free Speech aboard the Leaky Ship of State: Calibrating First Amendment Protections for Leakers of Classified Information,” Journal of National Security Law and Policy 6 (2013): 409–446; and Charlie Savage and Emmarie Huetteman, “Manning Sentenced to 35 Years for a Pivotal Leak of U.S. Files,” New York Times, August 21, 2013.

(29.) Bollinger, Images of a Free Press, 16–17.

(30.) Alexander M. Bickel, The Morality of Consent (New Haven, CT: Yale University Press, 1975), 80–83; and Daniel Ellsberg, “Secrecy and National Security Whistleblowing,” Social Research 77 (2010).

(31.) Branzburg v. Hayes, 408 U.S. 665 (1972); Geoffrey Stone, Top Secret: When Our Government Keeps Us in the Dark (Lanham, MD: Rowman & Littlefield, 2007), 45–64; and Jason M. Shepard, Privileging the Press: Confidential Sources, Journalism Ethics and the First Amendment (El Paso, TX: LFB, 2011).

(32.) David E. Pozen, “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information,” Harvard Law Review 127 (2013): 512–635; and Elie Abel, Leaking: Who Does It? Who Benefits? At What Cost? (New York: Priority Press, 1987).

(33.) Gaye Tuchman, “Objectivity as Strategic Ritual: An Examination of Newsmen’s Notions of Objectivity,” American Journal of Sociology 77 (1942): 660–679; and W. Lance Bennett, “Toward a Theory of Press-State Relations in the United States,” Journal of Communication 40 (1990): 103–127.

(34.) Sam Lebovic, “Limited War in the Age of Total Media,” in Understanding the U.S. Wars in Iraq and Afghanistan, ed. Beth Bailey and Richard H Immerman (New York: New York University Press, 2015).

(36.) Alfred McClung Lee, “The Basic Newspaper Pattern,” Annals of the American Academy of Political and Social Science 219 (January 1942): 46; Raymond B. Nixon, “Trends in Daily Newspaper Ownership since 1945,” Journalism Quarterly 31 (Winter 1954); Raymond B. Nixon and Jean Ward, “Trends in Newspaper Ownership and Inter-Media Competition,” Journalism Quarterly 38 (1961); and John C. Busterna, “Trends in Daily Newspaper Ownership,” Journalism Quarterly 65 (1988).

(37.) A. J. Liebling, The Press (New York: Pantheon Books, 1975), 32; and Sam Lebovic, “When the ‘Mainstream Media’ was Conservative: Media Criticism in the Age of Reform,” in Media Nation: The Political History of News in Modern America, ed. Bruce J. Schulman and Julian E. Zelizer (Philadelphia: University of Pennsylvania Press, 2017), 63–76.

(38.) Jerome A. Barron, “Access to the Press—A New First Amendment Right,” Harvard Law Review 80 (1967); and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

(39.) Minneapolis Star Tribune Co. v. Commissioner 460 U.S. 575 (1983); Grosjean v. American Press Co., Inc., 297 U.S. 233 (1936); and Richard C. Cortner, The Kingfish and the Constitution: Huey Long, the First Amendment and the Emergence of Modern Press Freedom in America (Westport, CT: Greenwood, 1996).

(40.) Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973).

(41.) AP v. U.S., 326 U.S. 1 (1945); Lebovic, Free Speech and Unfree News, 76–84; and Margaret A. Blanchard, “The Associated Press Antitrust Suit: A Philosophical Clash over Ownership of First Amendment Rights,” Business History Review 61 (1987).

(42.) Lebovic, Free Speech and Unfree News, 64–76, 191–196.

(43.) Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969); Lee C. Bollinger, Images of a Free Press (Chicago: University of Chicago Press, 1991); and Patricia Aufderheide, “Shifting Policy Paradigms and the Public Interest in the U.S. Telecommunications Act of 1996,” Communication Review 2 (1997): 259–281.

(44.) Anthony Smith, Goodbye Gutenberg: The Newspaper Revolution of the 1980’s (Oxford: Oxford University Press, 1980); James D. Squires, Read All About It! The Corporate Takeover of America’s Newspapers (New York: Random House, 1993); and Elizabeth MacIver Neiva, “Chain Building: Consolidation of the American Newspaper Industry, 1953–1980,” Business History Review 70 (1996).

(45.) C. Edwin Baker, “Ownership of Newspapers: The View from Positivist Social Science, Research Paper R-12,” Joan Shorenstein Center, September 1994.

(46.) James T. Hamilton, Democracy’s Detectives: The Economics of Investigative Journalism (Cambridge, MA: Harvard University Press, 2016), 47, 280; Robert W. McChesney and John Nichols, The Death and Life of American Journalism: The Media Revolution That Will Begin the World Again (New York: Nation Books, 2010); Leonard Downie Jr. and Michael Schudson, “The Reconstruction of American Journalism,” Columbia Journalism Review, October 19, 2009; Paul Starr, “Goodbye to the Age of Newspapers (Hello to a New Era of Corruption),” New Republic, March 4, 2009; and Steven Waldman and the Working Group on Information Needs of Communities, Information Needs of Communities: The Changing Media Landscape in a Broadband Age, Federal Communications Commission Report, July 2011.