Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The concept of a Bill of Rights itself is radical and revolutionary. But the idea that the press must be protected from the state is just downright outrageously brilliant. We've got to give props to the wealthy, elitist, dead white men who recognized the value of dissent. Just think: here we are, over two hundred years later, and this idea remains too dangerous for the majority of the world's states to implement (think: China, where 30,000 people are employed daily to censor the internet, or the middle east).
Notice: it does not say "Congress shall make no law" concerning the practice of medicine. Or law. Or any other "professional" human endeavor. There is no bar exam or state boards to be a journalist. No licensing. Civil society needs a free press, they understood, because if you protect that first, everything else can fall into place.
I'm an idealist. I also know the work of Gramsci, Foucault, Derrida, and Chomsky, and other theorists you would throw out to convince me what a sham the concept of a "free press" is. But don't waste your breath on me. Tell it to the Chinese or Iranian kid who dreams of one day running her own newspaper. Or perhaps she dreams of starting a blog to talk about how much she hates her academic job in the middle of China and wants to move to a big diverse city to raise her little boy.
Heh, I'm glad you responded to this; I was thinking of you while I wrote it.
One last thing: I reject the fascism analogy. For a very simple reason: you can say or print virtually anything you want in America (don't get me started on Judy Miller/Matthew Cooper in Plame affair). Air America's Randi Rhodes made a (lame)joke a few days ago about murdering the President. And she was not put in jail, tortured, or shot. She still has her job. Can you imagine a radio commentator anywhere in the world with that kind of freedom?
Don't tell me Bill Maher lost his job on ABC for talking about the courage of the hijackers, or other examples of a "chilling effect." Maher is on HBO and makes more money than any of us. We should be so lucky to be censored like him. Or Eminem. Who hates the FCC and can make millions of dollars by attacking the government - which protects his freedom to trash the state! Howard Stern might have a legitimate complaint, though.
Where was I? Oh yeah: If you are interested in promoting the notion of a free press to people around the world, try these sites:
IREX.org
Internews.org
and The Media Development Loan Fund
Sorry Dr. B, but your post a chord!
Thanks for the links. I'm more worried than you are about fascism, not only b/c of the "chilling effect" you forbid me to mention 
but also b/c of things like the press broadcasting government-produced "news" spots without identification, or the Pentagon creating "news" sources that don't identify themselves as Pentagon-created and so forth. To some extent, as you've pointed out, the *primary* problem here is the media being a bunch of lazy-asses, and it is this that gives me hope. But I do think that laws allowing the creation of huge media monoliths like Clear Channel, etc, are extremely worrisome from the p.o.v. that fascism is not *just* totalitarianism, but in fact totalitarianism + corporatism. It's quite possible to imagine a situation where we'd have *theoretical* freedom of the press still on the books, but with no actual access to the public--which is one reason I'm not so thrilled with the idea that blogs and "alternative" media outlets are the answer to the problem. Big, independent, responsible newspapers and television news shows (or the lack thereof) matter. A lot.
Wonderful post, even better site! As a former professional journalist, bleeding heart liberal idealist, soon to be unemployed academic I cherish the First Amendment. I'm appalled at the lack of concern for its protection shown by far too many Americans. But I'm also appalled at the sorry state of mainstream journalism these days, especially television.
I enjoy reading your blog and take comfort in knowing I'm not the only one trying to figure out whether i want to stick with the politics of academe or devote full time to writing.
"can you imagine a radio commentator anywhere in the world with that kind of freedom"
Uh, yes actually. The United States is not the only nation in the world with a free press.
It IS the only nation in the world where people pat themselves on the back with statements like that, though.
Most of our problems these days stem from that kind of hubris.
John:
I'm not saying America lives up to the ideals embodied in the First Amendment (I know the Sedition Act's history) only that the ideals themselves are extremely radical. And, I would argue, when codified into law, they are singular in the world.
Find me one example of a nation with the all-encompassing protections of the First Amendment AND truth as an absolute defense in all defamation/libel/slander actions and I'll gladly concede that other nations have a free press.
Canada? I don't think we can say a state with legally-sanctioned "publication bans" has a free press.
The U.K.? Where truth is no defense in a defamation action? Where the more accurate (read: truthful) the defamatory publication is to the Crown, the more severe the penalty? Check out John Peter Zenger's trial - or Deborah Lipstadt's - for more on this.
I just wanted to add this article about bravery in the face of an unfree press:
http://www.washingtonpost.com/
wp...5042801696.html
During the Orange Revolution last year, he sign-language interpreter on the Ukrainian official news refused to translate the government lies and instead signed the truth about the election results. This story is such an elegant act of bravery it made me cry.
Laura- that story sounds apocraphal -if you heard the same thing about the Bush campaign, using sign language to stop to the voting in Florida or Ohio, you would be suspicious- so considering Bush funded the Ukraniam opposition, maybe it was a good thing, but these stories sound propaganda-ish.
PorJ, I think you need to learn a bit more about Canada and our publication bans before you can make sweeping generalizations about Press Freedom here. Contrary to what that one article seems to think, oftentimes they are imposed to protect the privacy of victims or families giving difficult and personal testimony during a trial. The salacious details of a woman's rape should not be fodder for a sensationalistic press; whatever is dragged through the courts should not then be dragged through all of society. And while we may have a temporary publication ban on the Gomery inquiry, we don't have secret military trials conducted without virtue not only of press coverage, but of any due process of law. In December we will see all of the reports and testimony from that inquiry. When are you going to find out what's happening in Guantonamo bay? In 50 years when it's declassified?
I know I'm far prouder of my Canadian press than ever, after watching American press kowtow to the administration in a frightening manner for several years now.
PorJ. try looking outside of the english speaking world. try sweden, for example. i can very well imagine a radio commentator joking about killing the president (or prime minister cos we have no president) or the king for that matter, here without losing their job. i can even imagine them doing so in the public service broadcast, which is, ultimately, owned (but not run) by the state.
Andrea:
We agree: I'd take the CBC over any American news network right now. But I'm not talking about the performance of the press. I'm talking about the pure idealism and optimism that undergirds the American system.
And let me get this straight: You object to the secrecy of Guantamo, but you don't object to the secrecy of your government hiding ("temporarily") its own corruption?
Our government cannot ban anything "temporarily" except in extreme circumstances. The Pentagon Papers case took care of that. That's why last Sunday evening on "60 Minutes" over 20 million Americans heard Sgt. Erik Saar, a former Guantanamo Bay translator, talk about the bizarre, sadistic torture of detainees in Guantanamo. Now, if American politicians had recourse to a "temporary publications ban" whenever something scandalous threatened to bring them into disrepute, do you think we would have heard Sgt. Saar's accusations?
As to the point about rape victims. I'm extremely leery of closing any court system. Period. Who should decide who deserves such protection?
You support the ban because it shields rape victims. Who else should be shielded from public scrutiny? Does an accused sexual harrasser (one who is not yet convicted, and might not be, and would have his or her reputation permanently damaged simply by being accused publicly of the offense) deserve protection from public scrutiny until a verdict is reached in his or her trial?
Who else deserves to be shielded?
How about a serving government minister, on trial for corruption? Doesn't the public have a vested interest in following their serving public officials' trials?
I'm not trying to be offensive here - I'm just pointing out the hypocrisy of supporting some "publications bans" and not others. We've already taken care of that problem: Thank You, First Amendment.
Porj,
I'm not an expert in constitutional law. I'm more interested in how things actually work than in lofty idealism, and the fact of the matter is we have defacto publication bans in this country right now. Sure, they're 'voluntary,' and in general a result profit-motive related forces, but the end rsult is the same,any story with potential to do real damage to the Bush administration disppears down the memory hole. Public broadcasting used to fill some of the gap, but it looks like we're facing a palace coup over there.
The 'idealism' which undergirds the American press is meaningless if it doesn't function in the face of the profit motive.
PorJ, here is a fact sheet from Justice Canada on the permitted uses of publication bans:
http://canada.justice.gc.ca/en/n.../
doc_24280.html
As you can see, in contadiction to your posted article, the primary purpose of publication bans is to protect the proper functioning of the justice system and of due process of law and to protect the lives and well-being of victims and witnesses. Consider that one of the main reasons that victims of sexual assaults don't report the crimes more often is fear of what the trial will do to their lives. And yes, I do believe that a victim's or witness's right to privacy and safety outweigh the right of the press to publish pictures of a rape victim's bloody underwear on the front page to sell papers.
In teh vast majority of instances the publication ban only changes the names and identities of victims and witnesses; the press is free to report on all of the details of the case and trial, but the names are changed. A recent example of this is the Jonathan Case in Toronto, where a 12-year-old boy was viciously murdered by his older brother and a few of his friends. Please tell me how freedom of the press would be increased if reporters were free to disclose the identity of the victim of this terrible crime.
You can get the full text of the ruling on the publication ban for the Gomery inquiry here: http://www.gomery.ca/en/rulingon...publicationban/
As you can see, this judge had already denied a publication ban for this case--they're not easy to get, you know; except for victims of sexual assault under the age of 18, a person who wants to be protected by a ban must make written application and go through a hearing to obtain one--and only granted one on reapplication because media interest had so increased that he was convinced that a fair and impartial trial (a criminal trial against the persons protected by the publication ban is currently underway) would not be possible without the publication ban on the testimony of his inquiry.
Here is a quote from the ruling:
"Since publication bans should be limited as to their duration, scope and content, in order to minimally restrict the freedom of the press and the right of free expression that it represents, I will impose a publication ban only until the moment at the end of the criminal trial of the applicant concerned when jurors are sequestered to deliberate. In the meantime, at the end of the deposition of each of the applicants, I will be prepared to hear representations from interested parties, including counsel for the media, on the question of whether some or all of the deposition should be immediately released from the publication ban, taking into consideration the effect that such a release might have upon forthcoming jury selection."
Not exactly the action of a totalitarian state, is it?
What has that optimism and idealism gotten you? A prostrate press that publishes pentagon-produced news stories as fact; planted reporters in press conferences spewing scripted "questions"; reporters banned from press conferences for daring to ask unscripted questions. That doesn't sound like freedom of the press to me, nor does it sound like "optimism and idealism"; it sounds like cynicism and hopelessness.
"I'm extremely leery of closing any court system. Period."
The trials are not "closed." They are open. The press is present, writing articles and recording footage, which they are perfectly free to publish/broadcast at the termination of the publication ban, which is determined at its outset. Even at the Gomery inquiry the press is present, recording every second of the proceedings. Much of it is broadcast on the nightly news. Just not the testimony of those 3 particular individuals, until after the jury is sequestered in their criminal trials.
"And let me get this straight: You object to the secrecy of Guantamo, but you don't object to the secrecy of your government hiding ("temporarily") its own corruption?"
I do not object to the publication, ban, no. I think the fair working of the justice system is important enough that I can wait until December to find out what happened. Besides which, the testimony is only *allegations*--it may be true, it may be false; it may be significant, it might not be. It might be evidence of government corruption; it might be evidence of the corruption of a few members of government; it might be something else entirely. The whole point of the inquiry and the related trials are to determine whether or not it was government corruption, and if it was, who was involved.
Personally, I think that's far more important that the right of the Star to sell lots of papers.
If you actually read the ruling, you'll see that it's not "the government" hiding anything. Justice Gomery decided to implement the ban, not "the government;" and it took some convincing, too. The publication ban is quite limited and at least we know when we're going to find out what happened.
Meanwhile, secret military trials are being conducted in the US. (I'm not talking about the torture, which fortunately has become public, though I fail to see that's had any real impact; I'm talking about the related secret military trials). You don't have "publication bans" on them, which would at least permit the press to be present and record the proceedings for future broadcast. YOu don't even have lawyers or due process of law.
Read this: http://archives.cnn.com/2001/LAW...military.court/
And this: http://news.bbc.co.uk/2/hi/ameri...cas/
4422825.stm
Then tell me you don't have "publication bans." Not only have you lost freedom of the press, you've lost due process of law, to boot.
So you'll have to pardon me if I do find it objectionable to have the US held up in front of me as a light for the rest of the world to emulate in this regard. It *is* offensive for you to speak out about my country out of total ignorance. Or on the basis of one magazine article, which comes down to the same thing, since it was full of misinformation.
Believe it or not, it is possible in Canada for a person to go on TV or radio and make a lame joke about killing the prime minister. And not only would I not be jailed, tortured or shot, I'd probably find the stupid thing on a t-shirt for sale in the local mall by the next day.
I'm talking about the pure idealism and optimism that undergirds the American system.
The proof of the pudding being what it is, I'm not terribly impressed with the American press these days. If the ultimate expression of a pure ideal of free access to public information is Stone Phillips and Katie Couric bringing us the latest in infotainment, then thanks, I'll take the option where the ideal is alloyed with the realities of practical application. Give me the BBC over the NY Post for reliability any day of the week.
This is of a piece with the NPR discussion. They get federal funding, which we automatically assume means that they're beholden to lawmakers. But that fails to explain why, compared to the ideological shift of the rest of the major media, NPR has remained relatively stable ideologically, and has certainly done a better job of being biased in favor of fact over fact-esque (and of fact over fact-oid). Privately owned media outlets are supposed to only be swayable by market pressures, but that assumes that the objective of the people who are running them is to make a profit off of their news enterprise. If their purpose is, instead, to use their news outlet to improve profits in other quarters or to expand an ideological market share, then market forces do somewhere between jack and shit to influence how those outlets operate.
So great, we have a free press, if by "free" you mean that it's controlled almost entirely by corporate moguls who use it to push a capitalist agenda. Woo-hoo!
Thanks Andrea, for beating me to the punch and making most of my points for me. I'm an American, but my work has allowed me to travel around the world for 30 years, often alighting in various countries for months and (in the case of Canada and Britain) sometimes years. It's this experience that has given me the perspective to understand how tedious it can get when Americans start crowing about 'freedom' as if it were an American invention.
An example: I used to feel that the ability to vote a 'split ticket' in a US presidential election made our system superior to yours, since a PM with a sitting majority has powers that an American president can only dream about due the the strict party discipline enforced in your version of parliamentary democracy. But that all out the window down here now. The whole thing has become completely polarized. At least in Canada there are more than two viable choices, and one even has a socialist bent.
Incidently, I don't mean to make you paranoid or anything, but if the NDP ever gains power at the federal level up there I wouldn't be at all surprized to see the Shrub (or his successor) send in the troops.
Well, I'm on PoJ's side about the first amendment--I think it's a fantastic statement, and I'm not *aware* of any other country that has as clear-cut a statement of absolute freedom of the press.
But in the same materialist sense that makes me argue that "theorizing" about abortion is stupid and venal, yeah, I'd have to say that looking at how the American press is operating *in practice* right now scares the crap outta me; I think that the *theory* is more and more clearly being shown to be weak if it is undermined by corporate control, a lack of local ownership, and increasingly defining "freedom" as "the freedom to make a buck," rather than as, oh, say, having something to do with such a thing as "the public interest."
So I think it's complicated as hell, really. B/c yes, the second you start to define "the" public interest, problems can crop up. But clearly being cynical about the existence of such a thing and just reducing freedom of the press to the freedom to try to corner market shares is not the answer.
The First is lovely prose, and I recall being all freaked out as an undergrad in England thinking about the lack of written constitution there. But we did some research on Canada back when we first started looking at emigration, and it convinced me that the explicit-law/honor-system difference is probably of little practical value unless you're looking at things over a span of decades and from a mass perspective. Though I'm happy to be taught different.
John--haha. Thanks. Though I think there's little chance of that. And as an NDP member, I'm quite happy for us not to get a majority of seats. the NDP has managed to do quite a bit of good when holding the balance of power, and that's good enough for me.
FYI, if anyone is interested--the publication ban was lifted yesterday and all the testimony is now public.
Andrea,
I apologize for my idealistic civic nationalism being offensive(honestly: no snark intended). They were made in the context of "World Press Freedom Day." Perhaps even that idea is a western, hegemonic conceit. As Dr. B states, this stuff is really complex.
But it does all seem to boil down to philosophy versus action. We all agree on the shameful performance of the American press. No quibbles.
I think most of us are as disgusted as you are with the notion of a "secret court" for terrorists. But I note one important point on that end: those tribunals are for non-U.S. citizens. That's why the Supreme Court ordered Yaser Esam Hamdi freed. The Padilla case is going back to Federal Court in South Carolina, and one hopes the correct decision will be made in that one as well (yet another reminder of how serious court nominations are). I am fully aware of America's shameful history of denying the rights insured by the Constitution to people deserving of those rights (Dred Scott). Whether the secret terrorism courts are un-American or not will be decided according to Constitutional interpretation. But I know the Bush Administration, in setting them up and in condoning torture, has acted un-American. Perhaps, in some peoples' perspectives, he's been acting fully in accordance with American law, culture, history and society. I don't hate America enough to concede that (and I'm not accusing you of that either).
On the Randi Rhodes thing: dumb on my part. There is no First Amendment in broadcasting. It is licensed. Whole other subject.
On Gomery: A lot of people who agree with you on publications bans and support Gomery disagree on how often or how easily they are acquired. This from a supporter of your position:
The banning of the publication of evidence heard at pre-trial proceedings are routinely applied in criminal matters. The bans are imposed upon evidence adduced at an accused’s bail hearing and preliminary hearing and the information cannot be made public until the criminal trial is completed or, if it is a jury trial, until the jury is sequestered.
Again: this is theory versus practice. I'm against the theory of a publications ban - even if in practice they've been used sensibly and responsibly. BTW: CBC is reporting that the ban has only "partially" been lifted. Some testimoy public, but not the most sensitive stuff. And thanks (sincerely) for your information. This exchange has been very educational for me, for which I'm appreciative to you and Dr. B.
Just a couple of quick notes: if I recall correctly there was a "publication ban" of sorts on the name of the vistim in the Kobe Bryant rape case.
And on a major Canadian teevision station (ctv) they broadcast information about where to find details of the "banned" testimony on that very same day. Although they did not provide URL the gave the name of the website and a quick Google search revealed the banned infomration.
"The banning of the publication of evidence heard at pre-trial proceedings are routinely applied in criminal matters."
yes. just like Americans don't publish on what is presented to grand juries.
PorJ, as you point out, the Padilla case belies the "not applying to US citizens" thing. Plus wasn't that guy in Oregon held w/out charges for a while there? Yes, *technically* that law distinguishes between Americans and non-Americans (a revolting distinction, in this case), but in practice that doesn't seem to be how it's being used.
And hell, even if Padilla gets justice, the years he's been held now are still gone.
PorJ, it's not your nationalism that's offensive. It was making comments about Canada without substantiating them, based out of ignorance.
I don't think breaching constitutional rights for non-citizens only is any less offensive than breaching them for everyone. Either the ideals are universal, or they're not. But in any case, it wasn't the existence of secret military trials that was at issue: They serve as evidence that you do have publication bans. The difference is that there is no law or procedure governing their use; in your case, they really are insituted by governmental fiat and not by legal process (at least, in the cases of these trials). It is simply evidence that your assertion that other countries have publication bans and the US doesn't is untrue.
As someone else has already pointed out, pre-trial proceedings are a whole other kettle of fish; and besides which, again, even that quote points out that the use of publication bans is *time-limited.* They are not eternal. They are not secrets locked in a vault for no one to see, ever. They are used judiciously to protect the legal process until it has been completed. The public is not denied knowledge; the press is not denied freedom; it is simply a question of having to wait in order to ensure that all Charter rights of all parties are accounted for in a safe and equitable fashion.
You're right; part of it has been lifted. In any case, it demonstrates that the publication ban is not being used by government as a means of hiding its corruption from a bamboozled public or a muzzled press. It is protecting the working of the criminal justice system. I don't know about you, but if waiting for a few months to hear the testimony is hte price I have to pay for making sure that whoever is responsible for this mess is held fully accountable and correctly prosecuted under the law--then I'll take it. It seems fair and reasonable to me.
Theory vs. practice doesn't wash. If the practice based on the theory is unworkable, then the theory is flawed. Like communism: Boy, it was a nice theory, eh? Universal brotherhood of mankind working together to commonly meet the needs of all without material possessions etc. But the practice proved the theory wrong.
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