Article by William T. Coleman, Jr.
Our Founding Fathers gave us only subtle guidance in the first amendment when they wrote: ‘Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .’ Our forefathers often packed a tremendous wallop in a few carefully chosen words.
We know from the history out of which the first amendment emerged that the Constitution's express guarantee of freedom of the press, as separate and distinct from free speech, reflected the Founding Fathers' intent to establish a free and vigorous press as an essential part of our unique system of government. To prevent the tyranny of autocratic rule, they created a government embodying a complex system of checks and balances. Within this structure, the importance to a free people of an independent, private press was twofold. First, the press would serve as a nongovernmental ‘fourth branch’ of government, a check against the abuse of power by any one of the three official branches. This purpose was affirmed by Jefferson when he wrote that ‘ n o government ought to be without censors; and where the press is free, no one ever will.’ Second, the free press would provide the basic conduit of information between the people and their government, and, indeed, within the government itself. In Madison's words:
Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty . . . .
A free press is far more essential to our system of democratic government today than it was when it was so skillfully incorporated into our constitutional system. The press provides the means by which large and complex governmental institutions can be held accountable to the public on a broad range of ethical, social, and political issues. The press also enables periodic elections—the process upon which democracy depends—to be the means through which citizens make educated choices about the future direction and policies of the nation's leadership. Finally, the press allows vital issues of public policy that develop between elections to be vented and resolved in the body politic. Today, of course, ‘the press' is a generic term that includes revolutionary and powerful new forms of communication that were beyond the vision of the nation's founders. The word ‘press,’ however, remains appropriate, for no medium is more important to the dialogue between a literate public and its government than the daily newspaper.
As Secretary of Transportation during President Ford's administration, I found that the information I obtained from the press was invaluable in providing the perspective, sensitivity, and judgment needed to weigh recommendations both from within the Department and from individuals or groups outside it. A balanced and informed perspective was crucial because recommendations all too often advanced the particular special interests of the bureaucracy or private organization which made them. For example, as Secretary, I decided to allow Concorde supersonic air transport service between Europe and two United States airports on a sixteen month trial basis. Prior to making this decision, I published a statement of the relevant issues in the Federal Register, noting that certain conflicting public interest objectives needed to be reconciled. These objectives included adherence to international law and fairness, protection of our environment from excessive aircraft noise, and development of new transportational technologies. The press covered the Concorde story in remarkable detail, presenting varied points of view, including those of environmentalists and new-technology advocates as well as the foreign policy and free trade concerns of Great Britain and France, where the plane had been manufactured. The press' coverage of the Concorde issue undoubtedly prompted and contributed to the splendid public commentary, informative public hearings, and informed advice of my staff, all of which superbly educated me on the question at hand.
After I had reviewed the extensive record developed during the hearings, I completed a sixty page Concorde decision and scheduled a press conference to announce it. The working press was invited, but on one condition: that before I answered their questions and released the news for reporting, they would agree to spend an hour reading my decision in a secured room. I had analyzed some of the complex technical, environmental, and legal issues involved in the decision and then weighed the competing public interest concerns—concerns which did not lend themselves to easy or graceful comparison. I wanted the press to understand fully the subtlety of this latter process. Because of the media's interest in the subject, I feared that if I scheduled a typical press conference, the reporters would simply rush to their wire services with a headlined story without taking time to absorb the analytical framework within which the decision was made.
I thought that the stories which reported the Concorde decision were thorough, objective, and fair—perhaps as a result of this somewhat unusual press conference. This reporting in turn may have prevented Congress from legislatively overruling the decision, since, prior to its release, many members had opposed the Concorde on environmental grounds. My experience with the Concorde debate illustrates the ways in which the press and government can interact—at arm's length—to bring about more rational and thoughtful governmental decisionmaking and more informed and helpful participation from citizens. Both governmental officials and the press should experiment with new forums and techniques to encourage this kind of healthy communication.
Other experience while in the Cabinet strengthened my conviction that a free press is the one institution in our society that can hold public officials to a high standard of excellence: a standard measuring what their public actions ‘ought’ to be, not merely what is legally permissible or, even worse, what is achievable without detection. It disturbs me greatly when those privileged to hold high public office, however irresponsible the provocation, contend that a press kept in the dark or muzzled would better serve the public interest.
Recent developments in the law threaten to inhibit the press' ability to provoke vigorous and enlightened debate of public issues. Libel litigation involving charges that the press has knowingly or with reckless disregard defamed public officials has increased, and juries often have made enormous damage awards in such cases. This trend casts a pall of fear and intimidation over the process of free and unfettered inquiry and debate that is essential if democratic government is to survive in today's technologically and socially complex society. In addition, because reporters are quite vulnerable to governmental demands for information, they are unable to protect their confidential sources and information. This in turn impairs the press' ability to gather the news and thereby keep the public informed on the vital issues of the day. To address these disturbing trends, certain judicial restraints should be lifted, thereby freeing the press to fulfill its intended role as an organic part of the American democratic experiment. Before one can fully appreciate these concerns, however, it is necessary to describe how the free press in the United States has evolved as an integral and essential part of the democratic process.
About the Author
William T. Coleman, Jr. A.B. summa cum laude University of Pennsylvania, 1941; LL.B. magna cum laude Harvard Law School, 1946 as of 1943; law clerk to Judge Herbert F. Goodrich, United States Court of Appeals for the Third Circuit, May 1947 to August 1948; law clerk to Justice Felix Frankfurter, 1948 Term; Secretary of Transportation in President Ford's Administration (1975-1977); senior partner of O'Melveny & Myers of Washington, D.C., Los Angeles, California, and New York, New York; member of the American College of Trial Lawyers; Chairman, NAACP Legal and Educational Defense Fund, Inc.; Trustee, Brookings Institution, The Rand Corporation, The Carnegie Institution of Washington, The Urban Institute; and Trustee and Vice President, Philadelphia Museum of Art.
Citation
59 Tul. L. Rev. 243 (1984)