Vol. 2 No. 7 (July, 1992) pp. 102-104
THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF THE PRESS IN
AMERICA by Lucas A. Powe, Jr. Berkeley: University of California
Press, 1991. 357 pp.
TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL
LIBERTARIANISM by Mark A. Graber. Berkeley: University of
California Press, 1991. 336 pp.
Reviewed by Elliot E. Slotnick, Department of Political Science,
The Ohio State University.
Since the second decade of the twentieth century, when First
Amendment litigation became a serious constitutional concern,
numerous analysts have bemoaned the state of doctrinal and/or
theoretical development in various facets of the First Amendment
domain. Two recent books published by the University of
California Press add contemporary critical voices to this
literature while calling for significant, indeed dramatic,
reform. Powe's THE FOURTH ESTATE AND THE CONSTITUTION is largely
substantive in orientation and narrowly focused in scope on
issues concerning the freedom of the press. Much more theoretical
and sweeping in orientation, Graber's TRANSFORMING FREE SPEECH
can be characterized as an exercise in paradigm recognition,
debunking, and redevelopment.
Powe's volume takes as its starting point the case of NEW YORK
TIMES V. SULLIVAN (1964), the beginning of "modern"
constitutional law on freedom of the press. Nevertheless, the
book has a predominantly historical bent, focusing exclusively on
constitutional (not statutory) development in media law. There is
a good deal of "story telling" in the volume and the
history of press freedom in America, revealed through numerous
in-depth case studies of litigation, well demonstrates that
"progress" in press rights has not necessarily been the
operative rule.
The opening section of Powe's book explores the historical
traditions of American press freedom, examining early state
practices and the Constitution's framing period. Powe is
appropriately skeptical of evolutionary theories of rights and,
indeed, he takes on the conventional view associated with Leonard
Levy that underscores the seditious libel heritage of the First
Amendment. Instead, a more liberal perspective is offered to
counteract such time-honored accounts. Moving to consideration of
press freedoms during crisis times, Powe argues that the Sedition
Acts ran against the grain of the framing period in a strong
synthetic account. Similar treatment is given to the tainted
legacy of press rights across several crisis settings.
The second section of Powe's analysis moves beyond the historical
doctrinal recitation of his opening chapters to a more openly
prescriptive accounting of case outcomes in the specific issue
areas of libel, injunctions, media access, and antitrust
litigation. At times, the analysis is prone to unabashed
"Warrenism" as, for example, when Powe asserts,
"Much of the current state of libel law is associated with
the untimely and unfortunate transformation of the Warren Court
into the Burger Court." (p. 110) Above all else, however,
the discussion of specific press freedom issues reveals checkered
decisional patterns that offer no discernible enduring
principles. Throughout this analysis Powe relates the theoretical
underpinnings and historical foundations of media law to the
pragmatic realities of the cases under scrutiny.
The concluding section of Powe's tripartite study explores the
relevance and applicability of the "right to know" and
"fourth estate" models of press protection to numerous
media rights problems. The analysis illustrates that, ultimately,
neither model fully justifies the full range of press freedom
claims and that many such claims are, above all else,
self-serving. Still, the fourth estate model, perhaps like
judicial review itself, appears to win favor as an "act of
faith."
Powe claims that his book has been written for the "willing
reader" of all stripes, not solely for an academic audience.
On this level it has, at best, mixed success. Often, the analysis
is not easy going, much like sitting through a
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complex law school dialectic. Powe takes neither an absolutist
nor an unduly conservative posture towards press freedom. His
preferences would not satisfy the Reporters Committee for Freedom
of the Press or those in Warren Burger's camp. His
"solutions" to vexing press problems emerge as
pragmatic yet, ultimately, perhaps as unprincipled as the case
decisions he critiques. Throughout the volume, Powe makes choices
and draws lines, yet it is never evident what principled basis
exists for the choices he makes. In the final analysis, the book
is unsatisfying for readers seeking clues to the "right
answers" to press freedom questions. Curiously, for a volume
devoted exclusively to press rights, little or no distinction is
drawn among cases such as RED LION BROADCASTING V. FCC, CBS V.
DEMOCRATIC NATIONAL COMMITTEE, and MIAMI HERALD V. TORNILLO over
the different constitutional considerations that can come into
play when considering broadcast versus print journalism.
Much more sweeping in scope, theoretically driven, and
provocative in its argument is Graber's indictment of the utility
of existing First Amendment theory for dealing with contemporary
manifestations of First Amendment problems. At variance with
conventional wisdom, in Graber's view, the First Amendment has
enjoyed two dominant theoretical defenses of speech: an early
conservative libertarian tradition and, since World War I, a
civil libertarian tradition. The conservative tradition did not
approach differently the issues raised by free expression and
private property. In both domains, the central focus fell on
individualism, and courts could justifiably play a role in
protecting expression and property from governmental
actionlacking due process. Civil libertarianism, in contrast,
focuses on the social interest in speech (civic debate), not the
individual right to self expression. While justifying judicial
activity to protect speech's role in democratic processes, the
approach forbids interference with economic and social policy
choices. Thus, as Graber notes, "... judges must not concern
themselves with the relationships between private property and
political expression but should protect only those able to
exercise their First Amendment rights." (p. 9) In effect,
under civil libertarianism, "Courts had no power to provide
citizens with the resources they would need to effectively use
their free speech rights." (p. 12)
This, for Graber, defines the central contemporary First
Amendment dilemma since, he argues, issues of access to the
marketplace of ideas, economic disparities, campaign finance, and
corporate speech are society's dominant First Amendment concerns
surpassing the traditional problem of how much speech the First
Amendment protects. The villain of the piece, in Graber's view,
is venerated constitutional scholar Zechariah Chafee, who is
(dis)credited with orchestrating (manipulating) the movement from
conservative to contemporary civil libertarianism. Chafee's frame
of reference for First Amendment problems simply cannot address
questions which it did not anticipate.
Chafee never considered...possible constitutional relationships
between free speech and private property...[T]he difficulty with
Chafee's analysis is not simply that he opposed judicial activism
that promoted the economic conditions necessary for effectively
exercising free speech rights...Rather, his democratic process
model of the judicial function assumes that such problems are
trivial or non- existent. (p. 164)
Indeed, ironically, conservative libertarians could, in Graber's
view, be more successful in handling such problems.
Looking towards our constitutional future, Graber calls for a new
modern defense of free speech that pays attention to the link
between speech and property "in a world where the major
threat to meaningful debate on matters of public importance is
not that many are prevented from speaking but that many do not
have the resources necessary to be heard." (p. 215) In the
new paradigm in which the First Amendment must be viewed, the
concerns of "classic" free speech cases
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such as SCHENCK, ABRAMS, and GITLOW are no longer at issue.
Instead, an approach is favored that is "more
sensitive" to the threats posed to political processes by
the economically advantaged. In view of the strong critique
Graber develops, his outline for reform, admittedly skeletal, is
quite moderate as well, reflecting the intellectual realities a
contemporary First Amendment reformer must confront.
Graber's treatise gives the reader a great deal to ponder. It is
not, however, free of problems. For one, the contrasts between
the conservative and civil libertarian traditions may be too
sharply drawn. Graber's detailed presentation of both traditions
reveals their multiple strands which tend to obscure some of the
distinctions highlighted. "Fault" here does not lie
with the author, but it does strain the threads of the argument
he weaves. Indeed, the logic of individual self-fulfillment and
social benefit theory redound in the writing of all free
expression advocates and the two themes are in no sense mutually
exclusive. On another level, the portrayal of Chafee as a
constitutional Svengali seems a bit much to swallow. The tone of
the critique suggests manipulative willfulness, perhaps even
malevolence. It simply goes too far on insufficient evidence. The
reader may have similar difficulties with the portrayal of a
conservative libertarian court, hell-bent on substantive due
process, as a pro-expression court. By and large, the issues to
test this commitment did not arise. The question of whether these
conservative jurists would follow their faith if put to the test
is one that, of course, cannot be answered. The fact that
progressive approaches failed to protect speech during wartime
need not imply that the conservative libertarian alternative
would have been more successful in that political context. One
may also disagree with Graber's characterization of the
Holmes/Brandeis free speech tradition as containing mostly
"rhetorical flourishes." Finally, Graber may be too
ready to dismiss the First Amendment concerns that dominate the
civil libertarian paradigm. Ongoing debates on political
correctness, flag burning, demonstrations at abortion clinics,
hate speech and other "traditional" First Amendment
issues are not only still alive but may be on the rise.
None of this diminishes the importance of Graber's work. He has
performed a service in demonstrating that issues of civil
liberties and governmental powers are ultimately linked, a
reality that is often ignored in the structure of our distinct
constitutional law and civil liberties classrooms and, all too
often, in our thinking as well. In Graber's documentation that
mixed issues of speech and property are simply not old wine in
new bottles but, rather, are concerns calling for novel First
Amendment solutions, he has issued a compelling challenge to
democratic theorists of every stripe.
Copyright 1992