The Roots of Free Speech in the United States

By making freedom of speech and of the press one of the very first things added to the Constitution, the Founding Fathers clearly signaled their belief that freedom of communication is of paramount importance to a functioning republic. It should be easy to see why. You have to be able to discuss things openly and without fear of retribution in order to do politics on any level. The Framers believed that an open marketplace of ideas would best allow this, and that somehow, the truth inevitably would win out. As with so much of what they wrote, the idea of free speech was soon trampled by actual practice. The Federalist Party-dominated Congress soon passed the Alien and Sedition Laws, by which pro-Jeffersonian Republican newspapers could be penalized for criticizing the Federalists and President John Adams.

But journalism, the practice of gathering and reporting the news, was different then. It was expected that publications had a particular approach to politics, and wrote about it that way. It wasn’t until the 20th century that newspapers, and eventually television and radio, would try to cover the news objectively—without a slant one way or the other. So while publishers such as William Randolph Hearst and Joseph Pulitzer actively pushed for war with Spain in the 1890s, the expectation today is that reporters won’t take sides. This was called “yellow journalism,” for the yellowish tint of the newsprint they used. Today’s journalism is supposed to be colorless, and sometimes is.

Court cases stretching across the 20th century helped establish that the standard of press freedom implied by the First Amendment in fact means what it says: Congress and other governments can’t make laws that restrict the ability of people to say what they want, and for reporters to write or broadcast what they want. Political speech is in fact the most protected form of speech in the United States, so that anyone may write or say nearly anything about the president, no matter how false, and not suffer legal consequences. (Unless of course you suggest violence against the president or other elected official, in which case you will get a visit from members of the Secret Service. It won’t be a friendly chat.) This allows an internet blogger such as Matt Drudge to reprint any wild rumor about the president, even things that are clearly false.

And yet despite all this free speech—and the United States may have the most expansive view of free speech of any country in the world—speech is in fact restricted in a number of ways. A so-called strict constructionist view of the Constitution then would suggest that the phrase in the First Amendment, “Congress shall make no law...” means precisely that: no law. But an entire body of law is devoted to libel, for example—no one has the liberty to simply make things up about someone if it in some way damages that person (although the distinction between public and private figures allows people more leeway to make up things about politicians).

For example, broadcast television is regulated by the Federal Communications Commission. The airwaves over which TV (and radio) signals travel are in finite supply, and therefore regarded as a public possession used only under license. As a consequence, TV and radio transmissions are regulated as to objectionable content, (which means you can kill all the people you want on television, but no sex!). Gradually, the FCC has relaxed its rules, so that broadcast stations are no longer required to give equal time to opposing viewpoints, and the number of local stations that can be owned by the networks has slowly grown. Broadcast stations once were required to air a minimum amount of news coverage, which also is no longer true. Local television stations continue to air local news in part because it’s cheap to produce and so earns the stations a fair return on their investment.

Despite the restrictions, which are substantial, when it comes to content, we have news media that largely are restricted only by market forces. Mass media are largely paid for by advertising. The more people who watch, read or subscribe, the more they are able to sell ads, and the more they can charge for those ads. Media outlets go so far as to certify the number of listeners, viewers and subscribers, so as to convince advertisers that they are buying real eyes and ears.

Not having to rely on the government for funding gives them considerable leeway to cover politics. As with most things in life, some do it well, some do not. Letting the market manage the output of media gives it some freedom, but it also tends to put pressure to produce coverage that is sensational and focused on entertainment value (which draws ratings and advertisers) rather than meaningful content. Reporters face enormous pressure from management to break “big” stories, which often simply aren’t there.

Where the News Comes From

Most Americans’ news comes from half a dozen major TV networks, one wire service, a few magazines, and handful of newspapers, some radio, and, increasingly, the internet. A lot of this seems to be piggybacking off what traditional journalists have already reported. BloggersWriters who post their work on the internet, typically commenting on news that’s been reported elsewhere. (a contraction of the term web log) litter the internet like trash in a park after the Fourth of July, but the great majority of them only regurgitate what they’ve read in mainstream media. Very few actually do original reporting and break stories that haven’t already been reported elsewhere.

The concentration of media interests can lead to a sameness of coverage, and to the exclusion of certain viewpoints. In fact, only about two dozen major companies control the great bulk of the nation’s mass media. In the case of some organizations, such as Rupert Murdoch’s News Corp., parent of Fox, conservative viewpoints tend to be pushed. MSNBC presents news from a liberal standpoint. CNN, while endlessly and annoyingly touting the quality of its coverage, tries to carve out a middle ground.

Most Americans - 50-80 percent, depending on the estimate - get their information from television, which, unfortunately, rarely covers politics on a meaningful level. TV’s ability to take you there makes it great at covering events—natural disasters, sports, items with visual appeal. But its time-bound structure and its need for visual elements makes it not very good at covering ideas, which is what most of politics is about. Much coverage of presidential elections, and elections in general, is about who is ahead, not who is saying what. That’s when politics is covered at all. In another study, researchers found that the total amount of political coverage was declining in all media, particularly state and local politics. As a couple of political scientists put it some years ago, “TV and the American electorate are partners in failure.” Local TV news is particularly weak at covering local politics. Coupled with the decline of newspapers, people increasingly lack access to information about what city councils and even state Legislatures are up to. And that information is no less important than it ever was.

Television coverage tends to focus more on the flash, on what can make good pictures, and on who’s ahead in any given race, than on any sort of useful coverage about what people actually stand for, or whether one promised agenda or another will have positive or negative effects. Even with the need to be visual and brief, however, it should be possible to present coherent coverage of politics. Watch, for instance, the News Hour on PBS and compare that with what passes for news on the networks. Odds are, you won’t recognize it.

The emphasis on splash and flash can have other impacts. When broadcast news and entertainment programming tend to overdramatize routine events, this can make the world appear more troubled than it actually is. Even casual watching of local TV news in most markets would make one think that your community is under siege by the forces of darkness. And yet crime in America has been on a downward trend since the 1970s. Yet TV will probably never report that most teenagers don’t commit crimes, that most African-Americans are typical middle class citizens with jobs and homes, and that most Americans don’t use drugs.

Entertainment television is particularly fascinating. Think about a typical murder show such as “Murder She Wrote.” It takes place in a tiny town where someone dies every week. Why does anyone live in that town? It’s an actuarial nightmare. About three out of 100 Americans will be crime victims in a given year, and yet television averages 10 crimes a night. Businessmen are most often represented as committing crimes, and yet in real life most crime is committed by males under the age of 25. Politicians are represented as corrupt at least half the time, and yet the second half of the 20th century was one of the least corrupt periods in American history.

There is quite a bit of debate over the effect of media sex and violence, although a number of studies have been done and none have been conclusive. One has to wonder about a program such as Mighty Morphin Power Rangers, a mid-1990s kid franchise that apparently featured 28 minutes of the Ranger kicking the crap out of the bad guys, followed by two minutes of telling young viewers, “You know kids, violence isn’t the answer.” Which message do you think gets through?

And yet virtually every American home has a television, and at least one half have cable. Estimates suggest that Americans watch an average of 3-7 hours of television a day. That means the TV is on in a typical home from the time a person gets home to the time when they fall asleep at night.

Up to a quarter of Americans still get most of their information from newspapers, which tend to do a better job of covering politics than do broadcast media. Estimates of how many people still read a newspaper vary; it could be as much as 75 percent when you count both print and online editions. For newspapers, that’s part of the problem. Online editions still don’t generate enough revenue for newspapers to afford to be able to employ the number of reporters it takes to really cover something such as politics. This has been a particular problem for local papers, which usually provide the only meaningful coverage of local politics.

Newspapers still have an impact on “opinion leaders” (and this class will help make you one). A relatively small number of people who pay attention to politics tend to have an outsized impact on what other people think. It may be around 30 percent actually pay attention, and then spell out the details for the other 70 percent.

But are they effective? A test was done in Cincinnati in the mid-1940s, in which people were surveyed about the United Nations, which was then brand new. About 30 percent of respondents understood what it was. There followed a widespread, substantial information campaign to inform people about the U.N.—media stories, advertising, public forums. Following the campaign, a second survey was done, and about 30 percent of the people understood the U.N.

How News Media Actually Work

I will often ask students about what news sources they watch or read, and what they think of them. Many of them will answer that the news media are biased and lie just to get ratings, so they don’t read, watch or listen to anything. To which I respond, if you don’t read, watch or listen to anything, how do you know they’re biased?

The complaint is common. The United States has gone from a nation where people had complete faith in public institutions to a nation where people have almost none. Frankly, neither seems a very realistic view point. Conservatives claim there’s a liberal bias; liberals point to the obvious conservative bent of something such as Fox News. Radicals complain that the media tends to support the establishment (as though we should be surprised that reporters who are Americans in fact reflect what typical Americans are like).

Reporters do tend to be slightly more liberal that average voters; however the people who own the media are overwhelmingly conservative. Aside from the editorial pages, which tend to reflect the politics of ownership (and generally don’t hide that fact), most newsrooms don’t get dictates from above as to what they will cover and how they will cover it. Reporters at all levels try to present what seems to be the truth. If there’s a criticism to be leveled at journalism and journalists, it’s that so few political reporters know much about politics, and so don’t ask the right questions of their sources. Consequently, they tend to make errors of omission rather sins of commission.

We should understand something about how this all works. First, most reporters in the United States have gone to college and got a degree in journalism or communications. They’ve all been educated in the same tradition—go out and get the story, try to tell the truth, don’t take sides. Reporters at any kind of news organization—TV, radio, print, internet—get assigned to stories by their editors, and they go out and interview people who might know something about the topic, as well as getting reaction from people who might be affected by what’s happening in the news. So what a typical reporter is relying on is what people tell them. Reporters are biased—who isn’t?—but most of them try to work against that bias and tell the whole story.

Particularly with newspapers, the different parts and functions of a publication can be a little confusing, as readers may lump everybody together as though it was a single living organism with one goal in mind. The editorial page, or management’s commentary in some broadcast news programs, is where the management of the publication expresses its opinion. People get hired to do just that. Columns, which appear on the same page, often with the writer’s picture, are the opinion of that person. Most newspapers attempt to run a variety of columnists to express a variety of viewpoints. Print stories have headlines, which aren’t written by the reporter, and may make a story appear slanted in a different direction than the reporter intended. Reporters work with editors, who make assignments and sometimes even help reporters do a better job. They get a limited amount of time to report, write and file a story, before it ends up in print, on the air, or in the internet.

The problem reporters run into is that most news is based on what people tell them. Good sources, which reporters cultivate, may be people who are willing to talk as opposed to people who actually know something. Meanwhile, not that many people actually lie, people will say things they don’t really know for sure, because they think it’s OK if you’re making a valid point. Reporters have been trained to interview and to write, but they may not know as much about the particular subject to know when they’re being snowed. As a consequence, too many people are covering too many things about which they don’t know enough. A classic example was the coverage of the Tet Offensive in the Vietnam war. This was probably the turning point in American attitudes about the war, as it was widely portrayed as a disaster for the Americans and South Vietnamese. And yet, in reality, it was a military disaster for the Viet Cong, who ceased to be a factor in the war after that point.

Conversely, the U.S. military played the major media like puppets in their coverage of the first Gulf War, except for moments when publications such as Newsweek predicted extraordinary Allied casualties when soldiers inevitably had to storm the Iraqis’ sand forts (anyone with a smattering of military history would see that the easy answer was to go around them, which we did). The few casualties that did occur were flown into Dover, Delaware, at midnight, so as to avoid the Vietnam-era spectacle of so many flag-draped caskets coming home. Patriot missiles, which may not have actually hit anything, were portrayed as technological marvels, as were smart bombs, which actually only hit about 25 percent of their targets.

At the end of the war, General Norman Schwarzkopf literally thanked the media for their help in perpetuating so many myths about where the Allies might strike (such as a rumored sea landing in Kuwait City, which pushed the Iraqis to move units to an area where U.S. forces had no intention of landing). It didn’t hurt that the Iraqi government was as inept as the U.S military was media savvy. At one point in the war, a U.S. missile took out a building that the Iraqis claimed was a chemical weapons factory. The Iraqis claimed that it produced infant formula, which might have been plausible until they released video of workers, scampering over the wreckage, in coveralls that read, in English, “Baby Milk Factory.” In a country where they nearly all speak Arabic?

Coverage of the second Gulf War was even more restricted and uneven; virtually no one reported on casualties among Iraqi civilians during “Operation Shock and Awe.” No network TV cameras showed the Iraqis who were unhappy as the statue of Saddam Hussein was toppled. Saddam Hussein was a bad man, but if you’re supposed to be supplying fair and balanced coverage, then you’re supposed to show us that stuff, too.

Lacking knowledge, reporters too often fail to think critically about what they’re told, except for the many reporters who simply assume that people in positions of authority are always lying. Neither of these approaches is likely to provide citizens and voters with useful information on which to base opinions and decisions. The problem is not, as many press critics claim, the news media’s adherence to the standard of objectivity, the idea that news reporting will be unbiased. For one thing, hardly anybody in the business talks about objectivity, as most people recognize that it’s not possible to be completely objective. It is possible, however, to be fair, and fairness is a much more reasonable standard. What would be better still would reporting that tests hypotheses, as opposed to merely relaying them. Sometimes that happens, sometimes it doesn’t.

Another set of critics wants to see more interpretation and slant on the news, which usually has to do with how the critic feels about one subject or another. Even if we could argue that objectivity is the standard, or fairness, those approaches don’t have to be bland, and they have the virtue of letting the reader/viewer make up her or his own mind.

That leads to the chief fault of media consumers—too many people look for sources of news that confirm what they already believe. Anything that runs against that must be biased and is therefore evil and wrong, etc.

Similarly, the criticism that journalists tend to reflect middle class American values shouldn’t be surprising to anyone who can think beyond the end of his or her nose. Most working journalists are, like most Americans, of middle class backgrounds. The fact that their work should reflect the culture and socioeconomic stratum of which they are a part shouldn’t surprise anyone.

Journalists and politicians, naturally, have a mutually antagonistic and yet beneficial relationship. Having been on both sides of that fence, neither side truly understands the other in a useful way. The journalists frequently grasp neither politics nor policy, whereas the politicians have no appreciation or understanding what journalists are up against or what it is they hope to do. Even when they employ public relations people, often as not the PR types aren’t any better at working with the press than are their bosses, and sometimes worse. Politicians nonetheless find journalists useful for “leaks,” a time-honored process in which elected and appointed officials test-market ideas or send signals by surreptitiously “leaking” major news to selected reporters. This doesn’t always work. In 1988, George H.W. Bush was thinking of naming Indiana Sen. Dan Quayle as his vice presidential running mate. Quayle was not unintelligent, but he was not a good impromptu speaker. Bush’s aides thought he was a poor choice, and so leaked the idea to the press. Apparently, no one took it seriously and it wasn’t reported as the Bush aides hope it would be, and Quayle got the nomination.

Despite the media’s many faults, there is often enough information there to actually get a picture of what’s going on. Perhaps the best thing about American media is that there’s an awful lot of it. With a little bit of work, one can find quite a bit of information from a variety of sources, and that’s probably what’s required of anyone who wants some real understanding of what’s going on in the country. You simply have to consult a number of sources, and force yourself to look openly at things you think you oppose and critically at things you think you believe.

The News: Fair and Balanced?

This view of news as an attempt to provide an objective truth is a 20th century phenomenon and largely an American invention. Going back to the founding of the country, and in lots of the rest of the world, newspapers were expected to have a point of view—liberal, conservative, or something else. Reporters in such situations may be more likely to tell people what they want to hear, but also, sometimes, to explain what’s wrong with somebody else’s idea. Objective news coverage is more likely to give credence to ideas that make no sense in the process of telling both sides of the story.

Trade-offs are inevitable in news coverage from a point of view, however. Consider Fox News, which despite its self-proclaimed status as “fair and balanced” regularly presents favorable coverage of conservative viewpoints while trashing liberal ones. Although there’s nothing wrong with championing either viewpoint, from an informational standpoint, Fox may not be doing its viewers any favors. They probably could chuck the hyperbole and still do a good job covering news from a conservative viewpoint. But as it stands, in two different studies, Fox viewers were among the least informed people in the United States, and the more they watched, the more wrong they were about world and national events.

A third view of media, more common in authoritarian states, is that the media should be a tool of the state. In China, for example, major media are owned by the state and are expected to support and further the ends of the state (occasional Chinese protests to the contrary notwithstanding). A reporter who wrote critically of the performance of the Communist Party in running the country would have a short career. In recent years, Vietnamese journalists briefly did such things, before the communist government cracked down on them.