2
Constructing Press Freedom

The special constitutional benefits: preferential access, subsidies, exemptions and privileges that the press enjoys are a product of thousands of choices. These choices involve classic problems of resource allocation: a limited number of seats available in the galleries of Congress; the news conference can accommodate only so many questioners; there are limits on the amount of money that can be allocated to postal subsidies or tax exemptions; reporters' privilege could compromise the courts' ability to obtain evidence if extended too widely.1

Theory and the 'Fourth Estate'

People have an intuitive sense of 'the power of the press' but seldom stop to think what it is. Lecturing about press regulation to journalists, students, policymakers and academics I developed the habit of asking audiences whether they were aware of the notion of the 'fourth estate'.2 Most were. But when I asked them what the other three 'estates' were, a range of responses emerged. Americans, following some notable US theorists,3 tended to describe the fourth estate in terms of the 'three branches' theory of the separation of powers in the US Constitution. The state was divided between the legislature, the executive and the judiciary, and the fourth estate was another 'branch' of the state.4 Europeans often focused on the three estates of revolutionary France: clergy, nobility and commons. Nobody happened upon Edmund Burke's similar English formulation that 'there are in Parliament three estates'5 and 'there yonder [in the public gallery] lies a fourth estate'. For in Burke's Parliament there were the Lords spiritual (the bishops), the Lords temporal (the secular lords) and the Commons. Burke was acknowledging the burgeoning power of the press in Parliament, in 1787.

Whether or not Burke said precisely these words is disputed. But since the early nineteenth century, the 'fourth estate' has become a term to express the constitutional role of the press in democracy. The notion of a fourth estate encompasses a claim to collective autonomy and an aspiration to collective agency. Not only should individual newspapers and journalists be free, but the press as a whole should be treated as autonomous, to facilitate its checking function within a democracy. But the so-called theory of the fourth estate does little to identify any policy prescriptions that flow from this: if the press as a whole has a checking function, must government policy ensure that it is able to exercise it? Or should it merely get out of the way?

That liberals disagree so vehemently over how to respond to such questions signals the need for a more rigorous theory of press freedom, grounded in law but not limited to it, and able to answer the macro-question of the nature, extent and justified restrictions on press freedom, and the appropriate relationship to the state. Press freedom and the fourth estate should not be the realm of vague, normative arm-waving: laws, taxes, codes, liabilities and economic relationships form the sinews and muscles that link the press with the executive, Parliament, and other powers and interests. It is necessary to develop a deeper account of the fourth estate and of press freedom based on an empirical assessment of these institutions. To fully understand press freedom we must take into account the totality of institutional relationships between state agencies and newspapers, and the cumulative effects of alterations in tax, distribution, liability, competition and other regulatory frameworks on the overall sustainability and autonomy of the press.

This book focuses on the examples of the US and the UK. These two societies, of course, have no monopoly of wisdom or experience on media freedom, but are selected as the examples with which I am most familiar that may or may not provide insights relevant to other liberal and social democracies. Readers should use their own judgement about whether the concepts are relevant to other countries. Those who wish to understand press freedom in the US need to know something about press freedom in Britain, because the history of press freedom began before US independence. The US adopted a more radical approach to press freedom, and the legal, theoretical and constitutional histories of press freedom in the emerging democracies of the US and Europe have since been intertwined. They continue to intertwine as the US has created an international order with the development of UN and other agencies, such as the Council of Europe, which the UK is a founding member of, that protect press and media freedom, and as all democracies attempt to regulate new media. This chapter outlines an analytical summary of the development of press freedom and describes some of the 'thousands of choices' that are made under the banner of press freedom. These choices feature endemic conflicts and opaque reciprocities between the press and other interests. In this chapter, I focus on some key 'constitutive moments' and 'critical junctures' which form the background to 'social contracts' of press freedom that later emerged in liberal democratic polities.6

The Captive Press

The mass media first came into being with the invention in the fifteenth century of the printing press. From the moment when William Caxton's printing press, the first in England to use moveable type, was first inked in 1476, a struggle has continued over the potential for marshalling opinion of the growing number of increasingly sophisticated presses. How many presses were to be permitted, by whom, to whom, to do what, with what restrictions, administered by whom? Media, state and political power have ebbed and flowed in the years since, and the rules and doctrines of media law are left as tidemarks of former struggles. More than 500 years after Caxton set up shop, street battles were being fought7 between owners and workers over control of the presses, as the last newspaper makers left his neighbourhood, along the north bank of the Thames between Waterloo and Blackfriars, which had in the intervening half millennium become London's Fleet Street printing district.

In the first years, printing was tightly controlled by the monarch. The Stationers' Company, which was formed in 1403 and received its Royal Charter in 1557, gained formal powers not only to print, but to imprison unlicensed printers, and took a printers' guild into a state monopoly in printing. Although the first newspapers emerged in the 1620s, they were heavily censored and eventually banned by the Star Chamber in the 1630s.8

During the key legislative moments of the early modern revolution, attempts were made to justify and institutionalize press autonomy in England as elsewhere. John Milton's famous 1644 call for press freedom in Areopagitica articulated the value of a free press for the emergence of truth even during the civil war: 'And though all the winds of doctrine were let loose to play upon you, so Truth be in the field, we do Injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worst, in a free and open encounter?' For Milton, whose conception of truth was religious, openness and the free flow of ideas were fundamental to progress: 'Truth is compar'd in Scripture to a streaming fountain; if her waters flow not in a perpetuall progression, they sick'n into a muddy pool of conformity and tradition.'9 Milton was responding to the Licensing Order of 1643 which aimed to protect the printing monopoly of the Stationers' Company.10

The role of the Stationers' Company had gradually declined by the mid-seventeenth century, along with its ability to protect its monopoly, which was eroded by the emergence of 'unofficial' pamphlets and periodicals. It is generally asserted that 'freedom of the press' was achieved in Britain in the years following 1694 when the Licensing Act, which had established the state print monopoly, was allowed to lapse. The constitutional theorist A. V. Dicey rejected the claim that this was due to teleological progress or an intentional decision. Rather, Parliament in England liberated the press by accident. 'They refused to renew the Licensing Act, and thus established freedom of the press without any knowledge of the importance of what they were doing. This can be asserted with confidence, for the Commons delivered to the Lords a document which contains the reasons for their refusing to renew the Act.'11 Chance, rather than a conscious 'progressive' desire to liberalize, provided the impetus towards liberty of the press.

The idea of freedom of the press became a slogan for liberals in the eighteenth century, but there was a large gap between theory and reality, and even supporters of the liberty were divided between radical notions of a more positive and unequivocal freedom to publish without consequences, and the prevailing 'Blackstonian'12 notion that freedom of the press was complete with the abolition of prior censorship.

The frontier of debates on the proper extent of freedom of the press shifted to the laws and practices that governed prosecution after publication. By 1792, when Thomas Erskine expounded on freedom of the press in his celebrated defence of Thomas Paine,13 English libel law included a...