If the Press Is Free, Why Aren't We?
Newspapers condemn censorship of ideas while promoting censorship of production.
Many newspapers in rapidly growing areas of the country favor strong regulation of development. They editorially support slow- or managed-growth proposals. Sometimes they endorse candidates for local office committed to these policies. This point of view is not unusual these days, but the fact that it comes from the press should be most disturbing. Regulation of growth to the degree the newspapers desire requires increased government involvement in the private market and substantial controls over private property.
The publishing business in this nation has been a most vociferous opponent of any kind of government intervention, when its own ox is gored. The slightest suggestion of governmental controls over its obtaining and expounding the news usually brings forth a crescendo of outrage on the editorial and even news pages.
Not long ago when a Nebraska judge applied restraints on pretrial coverage to help assure a fair trial for a person accused of murder, the roar of the editorial pages across the nation was so loud, one might have thought the nation had succumbed to judicial dictatorship. Fortunately for the editorial image of the Supreme Court, it upheld the newspaper position and overturned the gag order.
REGULATE THE OTHER GUY
The construction business sustains infinitely greater regimentation, and yet still more is being demanded. The tyranny of government of which newspapers are so fearful is already a grim reality for many property owners and developers, and not a distant threat.
Growth controls mean that the local politicians make decisions on the use of private property, decisions that in a free society should be left chiefly to the marketplace. Freedom and competition are critically diminished in one of the nation's most important industries. The politicians and bureaucrats censor what can be built and where—and possibly, in time, by and for whom—something that our newspaper friends should well understand and find abhorrent.
The newspapers contend, however, that stronger regulation is required to prevent "sprawl" and other problems created by unregulated growth. But there is no question that freedom brings with it a certain amount of excesses and abuses. If that were the criterion for regulation, we would not have a free press. Considered in terms of the problems that can be or are created for society, there are few better candidates for regulation than the newspapers.
Distortions and untruths, unfairness and prejudice, exclusion and mistakes, occur more than just occasionally. The transgressions of the press into individual privacy and sensitive areas of crime and punishment have been recounted often, and they are numerous. Much "shoddy construction" is evident in news stories, particularly those concerning relatively complex social and scientific matters, and does not contribute to an informed public opinion.
As businessmen, the owners of newspapers seek to maximize their profits by selling information that most people will want to buy—and much of it does not further anybody's enlightenment or education.
The owners also possess immense power. In a representative society, the ultimate and final decision on war and peace, prosperity and depression, and personal rights and welfare rests with an electorate dependent on the media for accurate and reliable information. In a close election, the endorsement or reporting of a newspaper can decide the outcome in local or national races. Causes can be won or lost depending on the coverage they get.
The press plays a very critical role in our lives. Nonetheless, we allow publishers and editors to make those vital judgments unhindered by government—and with good reason. The progress of Western civilization has occurred because of its willingness to accept the fallibility of individuals rather than submerge them to the might of the State. This lesson appears to have escaped us when land use is involved.
The evidence is that most land use difficulties are attributable to the intervention of government. A major reason for sprawl in San Diego county, for example, is the strict growth policy of the city of San Diego (rarely criticized by the local press). It causes builders to develop property in the unincorporated areas and outlying cities even further from existing urban areas. Decreasing development restraints in the city would likely accomplish as much for orderly development as increasing them in the county. Regrettably, when this recently came up in San Diego, both daily newspapers seemed to prefer the alternative requiring more government coercion.
Growth controls lead to a reduction of housing production resulting in higher prices and rents and far less variety in improved real estate. Business and labor suffer. Mobility in housing is curtailed, to the great disadvantage of the less affluent. As the San Diego case shows, regulation begets regulation, and soon demands are made for controls over prices and rents and for greater amounts of housing subsidies. It is not much of a free society if only the newspapers remain free.
Many people from the press take exception to the views that the newspaper business is entitled to no more nor less liberties than the construction or any other competitive industry. They believe, along with many commentators on the subject, that the press warrants select treatment.
The grounds presented for this position typically are threefold: first, the rights of the press are absolute and unlimited under the Constitution; second, a completely unrestricted press is essential to the functioning of a free society; third, government is incapable of properly regulating the press. While not all of these arguments are accurate, there is enough truth in them to support the special legal status the press presently enjoys. They do not establish that the rights associated with the press deserve preference over those of other producers and sellers.
The First Amendment to the U.S. Constitution states: "Congress shall make no law…abridging the freedom of speech, or of the press.…" Some insist this is an absolute requirement and commands complete freedom of expression without government regulation of any kind.
The late Justice Hugo Black and retired Justice William Douglas are considered champions of this view, but in spite of their long years of service on the high court, they never obtained a majority for this position. Moreover, both justices qualified the applicability of this constitutional provision so that it was absolute only within a limited sphere. Thus Justice Black drew a distinction between speech and conduct and thereby excluded from constitutional protection many activities involving expression.
The problem with the absolute position is that society could not function in the absence of any restraints on expression. The irresponsible could, with impunity, shout "fire" in a crowded theater. Newspapers could print lies and misrepresentations and destroy reputations without fear of legal reprisal. The home, business, church, club, legislature, court room, and military, both on and off the battlefield, would not be immune at any time from uninterruptible harangues. Once it is accepted that the First Amendment does not safeguard these forms of expression, a line has been drawn, and the provision is no longer absolute, but subject to distinctions and controls.
No one has ever shown that the framers of the amendment intended the provision on expression to be absolute. The evidence would suggest otherwise; there probably was far less concern for free speech and press in the early years of the nation than now. Many leaders in colonial times and subsequent to the revolution were not opposed to punishing people for making political statements that today would pass largely unnoticed.
A more convincing argument is that a free and representative society cannot exist without freedom of expression. This is unquestionably true, for it would not otherwise be possible for the electorate to understand, discuss, and sound off on political issues.
But not all speech leads to political wisdom and progress. Most of the contents of newspapers—features, advertising, comics, sports, market reports—do not further the airing and spread of political and governmental information. These pages are devoted largely to the pleasures, conveniences, and material needs of people. On these pages, the publishing business contributes to the public welfare comparably to the housing, auto, transportation, food, etc., industries. To survive and flourish, publishers, like these others, must serve the demands of the consuming public.
Nor do the news and editorial columns always improve the public's comprehension of the issues. Splashy headlines, inaccurate reporting, partisan coverage, sensationalism, concern with personalities and not issues, and promotion of favored causes and exclusion of others tend to detract from rather than benefit the cause of self-government and enlightenment.
It is far from clear that the press is enhancing the condition of man more than the businesses that provide food, clothing, shelter, and other essentials. Publishing appears to be just as appropriate for government regulation, which is supposed to soften or remove the excesses and overcome the limitations of the private market.
Newspapers are on the firmest ground when they contend that government regulation of the press would operate tyrannically and incompetently. Censorship is wrong both for philosophical and pragmatic reasons. It is not a device reserved solely for the press, however. Government regulators who decide what can be produced in the economic market, and where, and make aesthetic judgments—as, for example, zoning authorities continually do—carry out essentially the role of a censor. The most persuasive rationale for press freedom, accordingly, applies equally to other sectors of society.
A professor of law at the University of San Diego, Bernard Siegan specializes in studies of land use. His latest book in this vein is Other People's Property. He writes a syndicated column for the Freedom Newspaper chain, and his article here is adapted from columns appearing on November 14, 1976, and January 9, 1977. Copyright © 1976 by Bernard H. Siegan.
This article originally appeared in print under the headline "If the Press Is Free, Why Aren't We?".