February 7, 2024

  When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s Free Press Clause the essential foundation of our democracy.

      The conception of the press as a pillar of strength for a free people who mean to govern themselves is as old as the republic itself. In 1765, in his acclaimed treatise, “A Dissertation on the Canon and Feudal Law,” a youthful John Adams wrote: “Liberty cannot be preserved without a general knowledge among the people, who have a right . . . and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean of the characters and conduct of their rulers.”

     Adams’s insistence that the “preservation of liberty” rests on the “general knowledge of the people” represented the earliest version of our historic understanding of Freedom of the Press as the public’s right to know.

    Adams anticipated James Madison’s eloquent defense of freedom of the press which, in combination with freedom of speech, provided the essential protection for a republican system of government. The press, he believed, must have “the right of freely examining public characters and measures.” It is only through close study and reporting on the means and measures of governmental policies, programs and actions, Madison explained, that the “sovereign people” can be sufficiently informed. Without information supplied by the press, the people, lacking knowledge, would be limited in their ability to scrutinize, critique and criticize governmental programs and actions. Without such knowledge, self-government would be but a pretense.

     Critically, this historical understanding of the foundational role that freedom of the press plays in safeguarding the republic transcends political, partisan and ideological lines. Justice George Sutherland, surely one of the most conservative members of the Supreme Court, echoed the words of Adams and Madison. In a 1936 case, Justice Sutherland wrote, “The people are entitled to full information in respect of the doings or misdoings of their government; informed public opinion is the most potent of all restraints upon misgovernment.”

     The informing function of the press, what may be described as the checking value of the “Fourth Estate,” is indispensable to the maintenance of the republic.  It has played a critical role, for example, in exposing governmental deceit in wartime—Vietnam and Iraq—and governmental efforts to suppress the truth, as seen in the Pentagon Papers Case (1971) and the Watergate Tapes Case (1974).

    It is precisely because “we the people” cannot attend the seat of government—state or national—to listen to debates on the great issues of our time or attend important trials that carry great significance for our democracy and the future of the nation that we depend upon a free and independent press to provide accurate coverage of newsworthy events. We are reminded of Madison’s fervent belief that the press must be free to “canvass the merits and measures of public men.”   

     The press is an indispensable representative of the people, a fourth estate. It is for this reason, as Justice Potter Stewart noted in the Pentagon Papers Case, that the press plays a vital checking role in national security matters, particularly because expansive claims of presidential power face little challenge from a quiescent Congress and a deferential judiciary. So, he wrote, “the only effective restraint upon executive policy and power . . . may lie in an enlightened citizenry—in an informed and critical public opinion. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.”

      Freedom of the Press, Justice Hugo Black rightly said, was created for the governed, not the government. If an enlightened citizenry is integral to democracy, as a long line of American statesman, from Adams and Madison to Stewart and Black, have so declared, then the press must be not only free and unfettered but dedicated, energetic and aggressive in informing the American people. Madison, who was prone to romantic musings about the press, nevertheless captured its historic importance when he wrote in 1799: “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.”

– David Adler