Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“The practical difficulty with our government has been that most of those who have administered it have taken it for granted that the Constitution, as it is written, was a thing of no importance; that it neither said what it meant, nor meant what it said…”     Lysander Spooner

February 6, 2006

“the freedom of speech, or of the press”

by Quincy

That phrase comes from the First Amendment. Here, for context, is the entirety of the Amendment:

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.

On the whole, the amendment deals with the freedom of conscience, which, along with life and property, is one of the most fundamental rights inherent to being human. What is freedom of conscience? According to Wikipedia, it is:

the freedom of an individual to hold a viewpoint, or thought, regardless of anyone else’s view.

That, however, is only the beginning of it. For freedom of conscience to be meaningful, people must be able to live as their conscience demands. The First Amendment deals with several aspects of it, including freedom of belief, freedom of expression, and the freedom to push for change in government. All of these freedoms center around the individual, because conscience is a solely individual phenomenon. Makes sense so far, right?

Here’s where it gets interesting–consider how freedom of the press has been treated in the last 50 years. It’s no longer that we have the right to publish freely, it’s the right to consume the products a free publishing establishment made up of professional journalists and writers. I attribute most of this conceptual change to the centralization of media that occurred over the first half of the 20th Century, when large-run news papers and radio stations became the norm. Until recently, the conception that people could speak freely but that only the professional press could publish freely could not be questioned, since those on the short end of the deal could not publish effectively anyway.

Now, with the internet, the question of who is or is not a member of the press is central to the free speech debate in Washington. Are avocational (as opposed to professional) bloggers part of the the press? Who should be able to speak freely about candidates in an election? What is the press nowadays, anyway?

Tough questions all, unless we hold a different, more expansive view of what “the freedom of speech, or of the press” means. It has always struck me as interesting that, in this country, libel and slander are two different crimes. In the most basic sense, they are the same crime, defamation, committed through different media, print and sound, respectively. As I recall, the distinction between the two was made because print was considered a permanent communitcation while speech was considered transitory. What if, instead of referring to a professional press, the framers were referring to the right of individuals to free expression in both permanent and transitory forms?

Now, it does not matter who is part of the press or not since every one of us has the right to free expression in both print and speech. Of course, if one reads the first amendment strictly, it does not allow for free expression in the electronic media, since they did not exist in the time the amendment was written. The best solution, also the least likely given the current crop of politicians, is an amendment protecting freedom of expression in every medium.

The next best solution, more likely than the last, is to jettison completely the idea that there is a press and the rest of us, instead focusing on speech and the press as being the two different types of expression, transitory and permanent. This removes from our lawmakers and the courts the burden of deciding which of us is more equal under the first amendment. Again, I don’t see this as particularly likely, since one of the biggest perks of power is the ability to make certain people special in return for support.

If we cannot seek an improvement, we must, at the very least, seek to keep the situation from becoming worse. I can see, all too clearly, the possibility that the “Cartoon Wars” that have erupted of late will open a door for the federal government, in the name of smoothing foreign relations, preventing those who are not members of the press from creating or distributing material offensive to Muslims. I’ve shown previously where the UN stands on this issue, and it is a stance antithetical to liberty.

The question, of course, is, what can we do? We can–we must–protest vigorously any attempt to make a certain caste of citizens, a.k.a. the mainstream media, more equal than you and me under the first amendment. We must make it clear that, when it comes to our rights, we are one people, each of us equal under the law without regard to our profession. And we must stand up for ourselves, since we cannot count on those in the media or in Washington to do it for us.

(Cross-posted at News, the Universe, and Everything)

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