Guest Essayist: James C. Duff, CEO of the Newseum and the Diversity Institute, and President and CEO of the Freedom Forum

“Congress shall make no law … abridging the freedom of … the press ….”  Those words, along with all others in the First Amendment to the Constitution of the United States, are engraved in the 74 foot high marble wall on the front of the Newseum on Pennsylvania Avenue in Washington, D.C.  The words are simple.  Enforcing those words – though not always easy or successful – is crucial to our democracy.

I recently saw a friend touring the Newseum who told me of a Russian visitor’s observation about our freedoms.  The visitor said, “We have freedom of the press in Russia too.  The difference in America is you remain free after you publish.”  His comment is both humorous and profound.

Many countries have a Bill of Rights.  Very few have mechanisms to enforce and preserve those rights.  What distinguishes our system of government from most others in the world?  What breathes life into our Constitutional freedoms?  We are indebted to our founders for the brilliant system of checks and balances of power built into our Constitution.  One of the most important checks on power is an independent and free press, “designed to serve as a powerful antidote to any abuses of power by governmental officials” as the Supreme Court noted in Mills v. Alabama (1966).

How do the mechanics and the design of the “powerful antidote” work?  Suppose Congress does make a law that abridges the freedom of the press.  In the United States, the press is free to challenge the law not only in print and other media, but also in court.  Once in court, an independent Judiciary is free to declare such a law unconstitutional and preserve the press’ freedom.  If Congress attempts to undercut the power of the Judiciary by, for example, requiring judges to explain their decisions to a Congressional committee or face impeachment for an unpopular decision, the press can expose the attempt and bring public pressure to bear on Congress.  Such critical analysis, coupled with an engaged and educated public can prevent the evisceration of an independent Judiciary (in this example) or other intrusions by one branch on another’s responsibilities.  The mechanics are circular and the gears work – most of the time.

Our history is certainly full of examples of a free and independent press exposing abuses of power by governmental officials.  Unfortunately, there are also examples in our history in which we have failed to enforce the freedom of press embodied in the First Amendment.

Only seven years after the ratification of the First Amendment, a Federalist-dominated Congress passed the Sedition Act of 1798, a tool used to suppress the contrary views of Democratic – Republican newspaper editors.  For example, Matthew Lyon, a member of the U.S. House of Representatives from Vermont and newspaper owner, was put in jail for referring to President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”  It became abundantly clear that the Act was unconstitutional, and a new Congress allowed the Act to expire in 1801 but not before several egregious suppressions of a free press had occurred.

There are several other examples of suppression of the press in our history, notably during periods of war.  Abolitionist newspapers were torched in the 1830’s.  During the Civil War, the Lincoln Administration ordered the closure of several newspapers and the arrests of several newspaper editors who opposed the Union efforts.  During World War I, Congress passed the Espionage Act of 1917, President Woodrow Wilson invoked it aggressively to suppress publications opposing to the draft, and in 1919 the Supreme Court unanimously upheld the convictions of Charles Schenck and Elizabeth Baer who had been convicted of violating the act when they printed leaflets urging draftees to resist the draft.  Similarly, the mailing privileges of the Milwaukee Leader were revoked by the Postmaster General during World War I because he concluded that their articles were interfering with the military’s efforts.  The Supreme Court upheld the Postmaster General’s actions.

In retrospect, it might appear that many of these historic suppressions of a free press could not occur in the United States today and that we have made significant progress and learned from those experiences.  During times of conflict, however, our country has compromised on freedom of the press.  Whether these particular examples could be repeated or not, they demonstrate that even with the protections clearly provided in our Constitution, and even with the best form of government ever devised to ensure those protections, ultimately the best defense of our Constitutional freedoms depends on an attentive, educated and engaged citizenry.

That is why the civic education efforts of Constituting America and the Freedom Forum are so vitally important to our future.

James C. Duff is the President and chief executive officer of the Freedom Forum and CEO of the Newseum and the Diversity Institute.  Mr. Duff is the former Director of the Administrative Office of the U.S. Courts, former Counselor to Chief Justice William H. Rehnquist, and former Chairman of the U.S. Supreme Court Fellows Commission.

February 28, 2012 

Essay #7 


7 replies
  1. Philip R. Tripp
    Philip R. Tripp says:

    I wonder what he thinks about the MSM today being in collusion with the Obama Administration and Liberal/Progressive/Socialists in general. Why are stories critical of the administration and it’s over-reach of authority and disregard for the Constitution buried or under reported? Why do we often learn of some of these transgressions from the press of other countries?

    The ‘Fourth Estate’ is bankrupt and in ruins. Credibility has been lost.

    • Barb Zakszewski
      Barb Zakszewski says:

      We expect the press/media to be “fair and balanced”, to report all the stories, without prejudice or appearing to be favoring one side or the other. But all the comments above are valid; the lamestream media is most certainly in Obama’s pocket. Witness the questions in the Presidential debates over the last couple of months. The media clearly had their biases on display as they tried to set the tone of the debates. We cannot let the media or the talking heads select our candidate for us. We MUST call these people on it. Do we want freedom of the press or state-run media? If we are not vigilant, we will have state-run media and not even realize it..

  2. Thelma Wright
    Thelma Wright says:

    Love this series and so far I’m keeping up.
    The examples given of the suppression of a free press happened in times of trouble/crisis. This country is in a financial crisis today and this president seems to ‘like’ a crisis. One of his and his admin’s first things to do was to try and leave out if not outright crush Fox News Corp. This administration knows they have got all the other major networks in their pocket, and lately I’ve noticed a shift in the agenda of some programs on Fox Cable News. More of the left-leaning radical commentators are appearing more frequently. I like to know what the radical left is saying and doing, but I can flip over to almost any other news network to find that out. Because there is such an imbalance in the news I believe that it is almost impossible to get and educated and engaged citizenry.

    • Ron
      Ron says:

      Thelma, agree about the creation of a crisis. A good salesman will create a crisis where none exists, in order to sell his product. This President, aided by the MSM, has done so with health care, climate change, among others; and he’s been masterful.

      However, the advent of Fox News on TV and the large number of conservative radio hosts has brought liberalism and progressiveism, or whatever catchy word they choose to call it today, out of the darkness and into the light. There remain many who are in the dark, but those attuned to FNC and conservative talk radio are more likely to vote than those who choose to remain in the dark, so I’m optimistic. We just need to remain vigilant.

  3. Marc W. Stauffer
    Marc W. Stauffer says:

    Liberty is the freedom to do something within the bounds of the law, but it also demands a certain amount of responsibility for our actions. As I read the commentary I was struck by the statement;”just because you can does not mean you should”. I think that statement should strike at the heart of our press today and they should remember the monumental influence they have on issues and the public. The media needs to remember; “just the facts”. Many lives have been needlessly destroyed because responsibility did not play in the decision to report. So many times the press makes assumptions or sensationalizes, plasters it on the headlines and gets it wrong. The apology, if there is one, is but a mere by-line mention. The damage is done and folks have to go about picking up the pieces in the aftermath of poor reporting.
    I agree, freedom of the press to report is a crucial part of our “checks and balances”……but the press (all forms of news media) needs to remember their responsibility and not give in to “selling the story” with sensationalism.

  4. Linda & Halley
    Linda & Halley says:

    Freedom of the press is such a precious right, and it is too bad that outfits like Media Matters are skewing the news! A truly unbiased press would be a beautiful thing to see and experience. And, we wish that people would quit using polls to push or make the news. Questions can be so loaded to get people to say just about anything the pollsters wish…then, it makes the news as “real news”. The problem as I see is is we have a plethora of people in this wonderful country that are opinionated versus being informed.

  5. Ebben Raves
    Ebben Raves says:

    Throughout history there have been relatively few periods where the press was impartial and reported “just the facts”. Pick up any newspaper today and you’ll find a slant, usually leftward, on any topic, from national politics to local issues masquerading as hard news. One of the greatest hoaxes ever perpetrated on the public is the lie of journalistic integrity. A dumbed down public, accustomed to soundbites and headlines, is fertile ground readily influenced by a press with an agenda, especially one which is purported to be telling the truth.

    The overwhelming majority of newsrooms are leftist. This is fact supported by any report showing voter registration or political donations. Since they rarely hear any dissenting opinion amongst their peers, they don’t see themselves as such. They regard themselves as intelligent, informed and most of all, correct. Those that disagree with their views are at best, ignorant and at worst, just plain evil.

    Couple this with a leftist administration and the end will always justify the means when spiking a story or running headlines over some trivial issue to deflect sunlight from real concerns.

    Totalitarianists will always attempt to justify their actions but their real enemy in a republic such as ours is an informed electorate. Collusion between education, the press, and government to advance a specific agenda by ensuring citizens remain ignorant of the facts makes these institutions illegitimate and unworthy of the trust placed in them.

    With this in mind, the goal should not be to ensure the press is reporting “just the facts”. The goal should be for everyone to realize that what they see and read is rarely the whole story. If the majority of the public were to say, in the words of a certain congressman, “You lie!”, whenever the press misled them, the only recourse would be to attack the public or tell the truth. One of these options wouldn’t sell papers. Either way, their monopoly would be broken and they would once again be relegated to their rightful place in the first amendment.


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