What follows are Favre’s opening remarks to
a First Amendment summit held
earlier this month in Washington, D.C., by the American Society of Newspaper
Editors:
The
First Amendment, it has been said, is a Constitutional minefield. And today we
may step on a few of those mines, but in the end, perhaps we can leave with a
better understanding and a greater clarity about not only defending the rights
embedded in the amendment but in helping to educate the public about them.
The First
Amendment, 45 words long, written by James Madison, 45 words with
extraordinarily powerful meaning, 45 words that have been challenged time and
time again.
“The
First Amendment is easy to understand,” the late Jim Carey, a wonderful
journalism professor at Columbia University and a friend, often explained to
his students. “It says that the government can’t tell you how to worship. It
says that if you have something to say you can say it. If you want to, you can
write it down and publish it. If you want to talk about it with others, you can
assemble. And if you have a grievance, you can let the government know about
it, and nobody can stop you.”
Unfortunately,
a survey conducted by the First Amendment Center based in Nashville, Tenn., found that
only 56 percent of the people knew about the guarantee of freedom of speech, 17
percent freedom of religion, 13 percent freedom of press, 11 percent the right
of assembly, and 3 percent the right to petition. We have a lot of work to do.
Those who adopted the First
Amendment were not journalistic innocents, nor were they lovers of newspapers.
The journalism of their day made no pretense to political objectivity or
fairness. It was pointed and partisan, in bad taste and filled with
distortions. And Jefferson and Madison and Hamilton used the newspapers to
attack their opposition in words that would make much of what is written today
sound like a Sunday school lesson. And remember that some of the same delegates
who sat in the first Congress later passed the first Alien and Sedition Acts,
suggesting that implications of free speech and free press were still obscure.
But, as the Supreme Court has said, a free press
isn’t an angelic press, a nice press. But the alternative of having no press is
much worse. The answer to correcting wrong speech is more speech, not less
speech.
Of course, I recognize that not everyone agrees with
that opinion.
In 1962, President John F. Kennedy said, “A nation that is afraid to let its people
judge the truth and falsehood in an open market is afraid of its people.” But,
yet, President Kennedy was deeply opposed to the Freedom of Information Act.
President Lyndon Johnson, who signed the FOI Act 40
years ago, also didn’t like it or want it, according to Bill Moyers. “He had to be dragged screaming to that
signing ceremony,” Moyers has said.
Thirty-five years ago, the government tried to stop The New York Times and The Washington Post from publishing the Pentagon Papers.
But the publishers stood their ground and the Supreme Court ruled in their
favor. Justice Hugo Black wrote, “The government’s power to censor the press
was abolished so that the press would remain forever free to censure the
government. The press was protected so that it could bare the secrets of the
government and inform the people.”
And now moving forward to today and to the issues of
reporting on national security, on forcing disclosure of sources, and other
events in a politically charged and deeply divided environment.
String together some of what has happened in the
past year or so and the debate tree begins to light up like a Christmas tree.
The New York
Times reported on secret domestic eavesdropping and received a Pulitzer
Prize. Vice President Cheney called the
Pulitzer a disgrace. Sen. Jim Bunning accused the Times of treason. And a San
Francisco radio talk show host and Ann Coulter debated whether the Times‘
executive editor Bill Keller should go to the gas chamber or before a firing
squad if found guilty of treason. Now the administration said it will
discontinue its warrantless wiretapping of calls between the United States and
overseas.
The Times, The Washington Post, The Wall Street
Journal, and the Los Angeles Times exposed the secret monitoring of
international banking transactions. The House voted to condemn the publication
of classified information. And a bill was introduced to criminalize the
unauthorized disclosure of classified information.
The Times‘ Judith Miller was jailed for refusing to
identify a source in the Valerie Plame case, other journalists were called
before a federal grand jury, and some have been called as witnesses in the
Libby trial. The administration asked that it be allowed to keep secret records
of visitors to the vice president’s residence and office. A former National
Security Council official said the White House tried to silence his criticism
of its Middle East policies by ordering the CIA to censor an op-ed column he
wrote. A federal court ruled that issue-advocacy ads could run during an election.
After demanding that the American Civil Liberties Union turn over a classified
document, the government agreed to make the document public. A federal judge
said that the detainee pictures taken at Guantanamo are not subject to the FOI
Act. The flag burning amendment failed by one vote. The Washington Post wrote
of the secret overseas CIA prisons. Two Indiana Republicans, Sen. Richard Lugar
and Rep. Mike Pence, pushed for a federal shield law. “It’s one of those things
that is a little counterintuitive for a cheerful right-winger to be involved
in,” Pence said.
But the action wasn’t reserved for Washington only.
Two San Francisco Chronicle reporters face jail time because they won’t reveal
their grand jury source in the Barry Bonds-BALCO case. A San Francisco freelance photographer went to jail because he wouldn’t turn over unaired video in
an investigation of arson on a police car. A settlement with Hewlett-Packard provided
civil penalties for its role in the boardroom leak investigation that led to
obtaining reporters’ phone records through a ruse.
Media outlets were even battling with each other. The
publishers of the Santa Barbara (Calif.) News-Press sued a reporter for the American
Journalism Review for defamation and a San Francisco alternative weekly asked a
judge to unseal documents involving Media News and the San Francisco Chronicle.
We have a
lot to talk about, and the minefield waits — a minefield that gets seeded with
additional controversy almost every day as the administration and more
prosecutors seem emboldened to pursue sources, as more civil suits seek sources,
as more courts allow less protection. That’s why this conference couldn’t come
at a more crucial time, a time for new approaches and for civil dialogue and for
a deeper understanding by all parties, a time to seek some harmony out of
division.
Let me
close with some words from a few Supreme Court Justices, past and present:
Justice Anthony Kennedy: “The
First Amendment is often inconvenient. But that is besides the point.
Inconvenience does not absolve the government of its obligation to tolerate
speech.”
Justice Louis D.
Brandeis: “The constitutional right of free speech has been declared
to be the same in peace and war. In peace, too, men may differ widely as to
what loyalty to our country demands, and an intolerant majority, swayed by
passion or by fear, may be prone in the future, as it has been in the past, to
stamp as disloyal opinions with which it disagrees.”
And,
finally, for those of us on all sides of
this discussion, from Justice William O. Douglas: “Those in power
need checks and restraints lest they come to identify the common good for their
own tastes and desires, and their continuation in office as essential to the
preservation of the nation.”
