A century ago, the First Amendment was taking its first, tentative breaths of life. The protection of speech, protest, religion and the press had been in the Constitution for 120 years, but no one had won a First Amendment claim in the Supreme Court.
It was a nasty time. Americans exited World War I shell-shocked and the Russian Revolution half a globe away had triggered America’s First Red Scare. Many Americans turned their fear into anger against Italian and Jewish immigrants, anarchists and leftists. The KKK was on the rise with lynchings of blacks at a 20th century peak of 76 in 1919. Attorney General Mitchell Palmer ordered a young federal agent, J. Edgar Hoover, to round up thousands of anarchists, socialists, labor protesters and immigrants without evidence of a crime. The press broadly applauded the crackdown.
This was the barren soil in which two justices of the Supreme Court, Louis Brandeis and Oliver Wendell Holmes Jr., planted the seeds of modern First Amendment law.
In the midst of the Palmer raids, a wealthy California suffragette, Charlotte Anita Whitney gave a speech to the Oakland Civic Club in support of the Communist Labor Party, of which she was a member. Police arrested her and charged her with criminal syndicalism.
The Supreme Court upheld her conviction but Brandeis wrote a memorable defense of the First Amendment. The Founding Fathers, he said, believed “the freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”
He later famously wrote, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” And he added, “The most important political office is that of the private citizen.”
For the past century, journalists have embraced those aphorisms about sunlight as the best disinfectant, about more speech as the antidote to false speech and about the professional press and an enlightened citizenry navigating democracy through the shoals of demagoguery.
But are principles of free speech and a free press sturdy enough to stand up to a world in which armies of partisans and KGB spies send billions of tweets, like poisoned darts aimed to democracy’s heart? The poisonous accusations and false information flash around the world in seconds, but weeks and months pass before they can be countered. False news travels much faster and farther over Twitter than accurate news, an MIT study found, partly because fake news surprises readers with its “novelty.”
Today the media and our democracy face another inflection point in the history of a free press in a democracy. Like a century ago, the soil seems barren.
– The president is at war with the truth, spouting false statements at the rate of eight a day – 5,000 over more than 600 days.
– The president is at war with the rule of law. He attacks his own attorney general and deputy attorney general. He tweets conspiratorially about a mythical “deep state” out to get him. He calls for prosecution of his political foes while branding the investigation into his possible crimes a “witch hunt.” It’s opposite day with the president saying how disappointed he was that federal prosecutors won a conviction of Paul Manafort and “flipped” his personal lawyer, Michael Cohen to get the truth about violating election law by paying hush money to porn stars.
– The president demeans women, saying he knows from experience that many who accused him of sexual assault were lying. That’s one reason he backs his Supreme Court choice Brett Kavanaugh in the face of compelling testimony Kavanaugh tried to rape a woman in high school. Trump’s empathy, as always, is with the “good man” whose career could be wrecked. He mocks Kavanaugh’s accuser and says he’s worried about young men, not women. It’s a “very scary time for young men in America,” he tells adoring fans.
– The president deports immigrants, portrays them as murderers and rapists and separates children from their parents at the border.
– The president demeans African countries, ridicules black critics for low IQs and talks about the good people among white supremacists and neo-Nazis at Charlottesville.
– The president refuses to defend international norms of human rights, calls for torture, commends the anti-democratic leader in Poland, criticizes Angela Merkel and NATO allies, and coddles Vladimir Putin despite his interference in the American presidential election.
In many ways it would seem like the worst of times for the press to carry out its watchdog function. Newsrooms around the country have shrunk. Washington and foreign bureaus have closed or thinned dramatically. Where once there were 230 full-time editorial cartoonists to mock politicians’ absurdities, now there are 30.
The First Amendment is strong, but the current Supreme Court often uses it to protect unlimited corporate spending on politics, to weaken public labor unions and to protect the religious rights of corporations.
Still, Washington journalists say today is a Golden Age for national reporting. At a recent reunion of Washington University Student Life editors, Jonathan Greenberger, executive producer of ABC’s This Week with George Stephanopoulos, said he is paying a premium to beef up the staff with national reporters. He has more reporters using more shoe leather to go beyond the horse race to report issues such as immigration and health care.
Laura Meckler of the Washington Post, said the media often doesn’t use the word lie to categorize a misleading Trump statement because “lie suggests intent…and I think he truly believes some of the things he says.” Also, lie loses its power if used too often.
But she and others national reporters said Trump’s use “fake news” and “enemy of the people” are dangerous claims intended to discredit the media as the “arbiter of facts.”
While Trump may want to be at war with the media, “we don’t have to be at war with him,” she said. “We are not at war with him. We have to maintain that sense of dispassion and cover him like everyone else.”
The journalists pointed to the comment last year by Marty Baron, editor of the Washington Post, “We’re not at war with the administration, we’re at work.”
Said Greenberger, “We go out and do our jobs. We go out and we report and we present that news to an audience and we do that day after day and we do that irrespective of who’s in the Oval Office.”
The next two years may answer whether the traditional verities of the First Amendment and a free press – sunlight, transparency, context, fact-checking, truth-seeking, fairness – can provide an effective check on a president at war with the truth and a media atmosphere filled with billions of powerful bits of disinformation that threaten to drown the truth.
To paraphrase Joseph Pulitzer, will a public spirited, intelligent, courageous press preserve the public virtue or will the cynical, mercenary, demagogic forces of a billion bits of propaganda produce a people and a democracy equally base?