Fencing in the Fourth Estate

The Fourth Estate and the Constitution: Freedom of the Press in America, by Lucas Powe, Berkeley: University of California Press, 359 pages, $29.95

Trasforming Free Speech: The Ambiguous Legacy of Civil Libertarians, by Mark Graber, Berkeley: University of California Press, 347 pages, $39.95

Who is Lucas Powe, and why does he think I make too much money?

And why does Mark Graber want to restrict my right to disagree with Powe?

Powe, professor at the University of Texas School of Law , is the author of The Fourth Estate and the Constitution. One of his conclusions is that the only ones who benefit from the current libel-law system, largely constructed upon the U.S. Supreme Court's 1964 decision in New York Times v. Sullivan, are media-defense lawyers: "While the problems that the libel rules pose for the press are complex, they ultimately can be subsumed under a single heading: money. Libel litigation, as we have already seen, allows attorneys for the media to make out like bandits."

Bandits? I confess to being a media-defense lawyer, and I do spend a considerable portion of my professional life representing various media clients in libel litigation in the television, cable, newspaper, and magazine industries. But a bandit? Our clients needed defending, and the First Amendment is the libel-defense lawyer's weapon of choice, even more than truth, because it is easier, and most times cheaper, to claim First Amendment protection than to litigate the "truth."

As a consequence, the scope and extent of First Amendment rights today are greater than at any time in our nation's history even if the extent isn't as great as the plain language of the amendment would permit. Accordingly, we media-defense lawyers prefer to think of ourselves as those who have an opportunity, as Powe more gently observes elsewhere in his book, "to do well by doing good."

If Powe thinks media lawyers make too much money, his colleague Mark Graber, an assistant professor of government at the University of Texas, wants to make sure we don't spend more of it exercising our First Amendment rights than those less fortunate. He notes in his new book, Transforming Free Speech: "Individuals have the constitutional right to convert their material resources into political expression as long as the average member of the community can afford to invest similarly in politics.…No one has a constitutional right to use economic privilege to magnify otherwise relatively weak political skill.…Affluent Americans have no First Amendment right that permits them to achieve political success through constant repetition of relatively unwanted ideas."

Issues of compensation aside, friends of the First Amendment will find a lot to like in Powe while only the politically correct will find comfort in Graber. Lucas Powe's last book, American Broadcasting and the First Amendment, won several awards and is a seminal work in the field. It effectively destroyed the oft-stated basis for government regulation of broadcasting and demonstrated that "regulation in the public interest" is merely a convenient cover story for government censorship, political abuse, favoritism, and corruption. His solution: complete First Amendment freedom akin to that enjoyed by the press for all broadcast media, including radio, television, cable, and any new technologies that may emerge.

Powe's new book is even better, despite his lawyer-bashing. The first part of the book is one of the best short overviews of the history of the First Amendment I have read. The second part is an in-depth coverage of four major First Amendment issues facing the press today—libel, prior restraints, access to sources and information, and antitrust.

Powe's chapter on libel is on the mark when it properly identifies the principal, unintended consequence of New York Times v. Sullivan and its actual-malice rule: It turned the libel trial away from what the defendant said about the plaintiff to a scrutiny of how the press put the story together, what reservations the reporters and editors may have had about parts of the story, and why they chose to say one thing rather than another.

This is wrong. It violates the spirit of the First Amendment because it isn't the government's job, through its judicial branch, to second-guess editorial judgment, and yet that is precisely what happens any time a public official or public figure brings a libel suit. A lot of time and attention have been devoted to proposing reforms to correct this defect. Most proposals include an elimination of punitive damages and a return to truth as the primary focus of the trial.

I am in a minority among media-defense counsel, but I believe I reforms such as these deserve serious consideration because winning libel cases is not always the same thing as protecting the First Amendment. More-prominent media-defense attorneys, such as Floyd Abrams, oppose the reforms because most would involve abandoning the New York Times v. Sullivan standard requiring a public-figure plaintiff to prove that the media knew the story was false or entertained serious doubts as to its truth.

It's a trade-off I am willing to make to get the government out of the editorial process and the reporter's mind. But Powe resents those who won't make the trade-off and who conclude that the proposed reforms are an attack on the First Amendment: "The best explanation for their ridiculous conclusion is that they have wholly internalized the fact that the First Amendment is responsible for their fat wallets—so that an attack on the latter is perceived as an onslaught on the former."

Relax, professor. There is a simpler explanation to the opposition of many media-defense lawyers to the reforms. We win most of our cases today under the New York Times standard (which is, after all, our job), so why change? Powe grudgingly admits that this may be an explanation but rejects it because, among other reasons, "it ignores the press's interest in litigation alternatives that cost less and therefore chill less."

Powe's position, however, depends upon the unspoken assumption that libel litigation today is more expensive than other forms of civil litigation. Here is where I think Powe goes wrong. As Walter Olson demonstrated in his recent book The Litigation Explosion—and as I know from my personal experience in litigating cases ranging from antitrust to employment discrimination to trade secrets—libel litigation is no more expensive than other forms of complicated civil litigation.

Simply put, libel cases limited to the issue of truth wouldn't automatically be quick or inexpensive. Indeed, in many cases, focusing on two persons' perception of the "truth" and why one perception is wrong while the other is right often leads to more-complex litigation. Protecting the media from punitive damages and keeping the government out of the editorial process are the only significant reasons for supporting libel reform. Reducing litigation expense is a promise that the reforms can't deliver absent a wholesale reform of our current civil litigation system.

"Antitrust" is Powe's weakest chapter, and I suspect this is because Powe doesn't have a significant background in antitrust. He appears to accept the ACLU argument that the antitrust laws aren't working to prevent the concentration of media ownership, and he half-heartedly endorses stricter media-specific antitrust laws. Yet there is more news and information available from more sources with more points of view in today's market than at any time in the past. The "good old days" Powe refers to were, in retrospect, not that great compared to today.

As Robert Bork, Yale Brozen, Richard Posner, and especially Dominick Armentano have demonstrated, antitrust laws have been primarily used over the past 100 years to protect inefficient businesses, not consumers. If the antitrust laws had worked "as well as hoped," there would be less, not more, competition in the media.

The most impressive part of Powe's book, however, is his discussion of two competing "models" of the First Amendment. One is "the public's right to know" model which, as Powe demonstrates, is a double-edged sword. One edge "grant[s] the press preferred status among all communicators…[ and] elevate[s] the press as the public's surrogate in vindicating the public's rights." The other edge is far more dangerous and "uses the government as a surrogate for the public and regulates the press in those ways essential to seeing that the public's right to know receives vindication in fact as well as rhetoric."

It is this edge of the sword that had been used to deny important First Amendment protection to broadcast media. As such, the right-to-know model is inherently flawed. As Powe observes: "The right to know is not a right; it's a slogan. Furthermore, it is a dangerous slogan, because it instantly invites inquiry into the actual performance of a newspaper. Instead of giving the press more rights, it runs the risk of denying the press its most sacred possession, its autonomy."

The "fourth estate" model of the First Amendment avoids this risk, viewing the press, in Justice Potter Stewart's phrase, as "a fourth institution outside the government to check the potential excesses of the other three branches." Powe argues that this model "protects the press as an autonomous, independent check on government."

He demonstrates this in an excellent analysis of the Supreme Court's 1974 decision in Miami Herald v. Tornillo, which reversed the Florida Supreme Court and declared unconstitutional a Florida law guaranteeing a political candidate attacked by a newspaper the right to reply. Powe shows that the wrong edge of the right-to-know model could have produced a different result. After all, doesn't the public have a right to know the candidate's side of the story? Should the press be allowed to abuse its privileged position to keep this information from the public?

It's an argument the Supreme Court accepted in its 1966 decision in Red Lion Broadcasting upholding the constitutionality of the Federal Communications Commission's Fairness Doctrine, which required broadcasters to cover both sides of controversial issues of public importance. Indeed, the Florida Supreme Court relied upon Red Lion in upholding the constitutionality of the Florida right-of-reply law in Tornillo.

Mark Graber would obviously like Red Lion, even though he doesn't mention it in Transforming Free Speech. Graber is no friend of the First Amendment, and if he wouldn't go as far as Yale law professor Owen Fiss, who has argued in recent law review articles that the government has the power and obligation under a "right to know" model to "put on the agenda issues that are systematically ignored and slighted and allow us to hear voices and viewpoints that would otherwise be silenced or muffled," he nevertheless wants to place significant restrictions on existing First Amendment freedoms.

"The increasingly monopolized media, many charge, do not reflect the full spectrum of political opinion in the United States and do not provide citizens with all the information they need to make responsible choices," writes Graber, who is clearly sympathetic. "In short, disparate economic holdings are affecting the capacity of elected officials to deliver programs responsive to the needs and sentiments of the majority of Americans."

Graber's chilling solution to this perceived problem goes something like this: Money is not speech. Accordingly, the government can prohibit you from using money to exercise your First Amendment rights if by doing so you are spending more than "the average member of the community can afford to invest similarly." As the Supreme Court noted in the mid-1970s in striking down campaign finance laws that limited the amount private citizens and corporations could spend to support candidates and ballot propositions: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment.

But if Graber's policy views are unworthy of the First Amendment, his scholarship is not. In a nifty piece of revisionist history, he shows how Zechariah Chafee—whose 1920 book Freedom of Speech has been described as the "Bible of civil liberties questions" and the starting point for all discussion for "two generations of free speech advocates"—"transformed the constitutional defense of free speech by treating expression as a functional requirement of democratic government, rather than as an aspect of a more general right of individual liberty. His works deliberately obscured earlier libertarian arguments that intimately connected the liberty of speech with the philosophical and constitutional principles underlying the liberty of contract."

Graber shows that in the late 19th century long before the U.S. Supreme Court ever did so, state-court jurists with a libertarian perspective used the 14th Amendment to apply First Amendment restrictions to state and local governments. Indeed, long before New York Times v. Sullivan, libertarian jurists had issued state-court decisions holding that public figures in libel cases had to establish that defamatory statements made about them were made in reckless or intentional disregard of the truth.

Graber's chapter on these "conservative libertarian" jurists is an eye opener. "Government had, in their view, no more business interfering with a person's liberty to say and hear what he wished than with the liberty of a person to buy and sell what he wished.…Like earlier Jeffersonian and Jacksonian thinkers, they argue that the system of private property was a necessary, if not a sufficient, condition of a functional system.

But so successful were Chafee and his disciples in obscuring this 19th-century libertarian tradition that you won't find these cases mentioned in New York Times v. Sullivan.

You may well wonder why Graber went to all this trouble, given his open hostility to the views of these 19th-century libertarians. His point, if I understand it correctly, is that there is no consistent philosophical and constitutional defense of free speech but that, instead, there have been different defenses based upon the needs of the times. The late 19th century had one theory; the post–World War I period another; and Graber believes that what the times today require is a muzzling of rich people so that presumably politically correct views will have a better chance to be heard.

Graber calls this "a preliminary sketch of a new general theory of the First Amendment…a political libertarian approach to free speech problems," but the words don't fit the music. There will be nothing libertarian about Graber's picture once it is complete, and the future of freedom will be enhanced if Graber's sketch remains preliminary. As they are colleagues at the University of Texas, perhaps Graber ought to spend more time talking with Lucas Powe.

Contributing Editor Michael McMenamin is a lawyer with Walter, Haverfield, Buescher & Chockley in Cleveland.