Jefferson understood that a vibrant and free press is critical to sustaining the rule of law. Along with free speech, a free press is indispensable for people to be informed and to participate in a democracy. On these points, lawyers and journalists are united.
The transparency that journalism brings to events makes government work better, decreases the risk of corruption and ultimately makes our nation safer. Lawyers often use information uncovered by journalists to prosecute wrongdoing, to hold officials accountable, and to rectify injustices.
Of course, the media robustly protects its First Amendment freedoms on its own. It is a strong institution that has served our country since its inception. But changing technology and an evolution in the way people consume news has brought challenges. Among them, fabricated news stories shared on social media sites and a tendency of readers to only consider news stories that adhere to their political ideology.
The erosion of trust in any institution, whether it be the media or the legal profession, weakens the foundation of our democratic system. In a 2016 Gallup poll on honesty and ethics by profession, only 23 percent ranked journalists very high or high, just above lawyers who came in at 18 percent.
Attacks by government officials on the institution of the press are also damaging. Calling the media “dishonest” or the “enemy of the American people” works to further destroy public trust. Trying to bully the press with threats or insults only works to weaken our democracy.
This is not a new phenomenon. The previous administration vigorously fought many Freedom of Information Act requests, prosecuted whistleblowers and journalists while criticizing news outlets it did not like. Richard Nixon railed against The Washington Post for its reporting on the Watergate scandal.
During World War I, Woodrow Wilson signed the Espionage and Sedition Acts of 1917 and 1918, which made it a crime to “utter, print, write or publish any disloyal, profane, scurrilous, or abusive language” about the federal government. Under this Act, Jacob Frohwerk was convicted and sentenced to 10 years in prison for publishing articles that claimed the United States got involved in the war to benefit Wall Street bankers. His case went to the Supreme Court, where he lost a unanimous decision. But since then, the courts have been kinder to the press.
In Near v. Minnesota, the Supreme Court in 1931 established the principle of prior restraint, saying the government cannot censor or prohibit a publication in advance. In 1964, the Court ruled in New York Times Co. v. Sullivan that the First Amendment protects the publication of even false statements about public officials unless made with malice or knowledge of falsehood.
Our country still enjoys press freedoms that many parts of the world lack. Journalists are not threatened with physical harm or death for doing their job. But still, the degree of freedom is cause for concern. The group Reporters Without Borders ranks press freedoms in 180 countries. The United States ranked 41st in 2016, right behind Slovenia. The group cited the government’s war on whistleblowers as well as surveillance activities against journalists as the main factors in its rating.
Freedom of the press is important not just to protect reporters and the news media, but to protect our rights to have access to the information we need to make decisions about our government.
The absence of a free and unfettered press has dire consequences. As U. S. Senator John McCain recently said February 20, 2017 on CNN: “If you want to preserve democracy as we know it, you have to have a free and many times adversarial press. And without it, I am afraid that we would lose so much of our individual liberties over time. That’s how dictators get started.”
– Linda Klein is a former president of the American Bar Association. The opinion above was published in the ABA Journal, May 2017