Access to the Press; J. Merrill

They are convinced that minority opinions are not getting their fair and proper hearing, and they feel that if the country's newspapers will not act responsibly in this area, they should be forced to do so. Many of them, spouting the plati tudes of the Hutchins Commission Report of 1947, advocate judicial and legislative stimulants to their kind of pluralistic press. One of this number, Jerome A. Barron, an associate professor of Dr. Merrill is Professor of Journalism at the University of Missouri. AQ law at George Washington Uni versity, has proposed (Harvard Law Review, June, 1967) an inter pretation of the First Amendment 'which imposes upon the press an affirmative responsibility to pub lish minority views, and he would, for example, support legislation \vhich would force newspapers to print letters-to-the-editor from minorities. Professor Barron is rather typical of the new breed of "press directors" acting in the name of social responsibility.

If one looks at this complex is sue as having to do only with as suring minority opinions a fair hearing, it is little wonder that a proposal like Professor Barron's would be considered salutary and long overdue. This, however, is not where the 1968 ACCESS TO THE PRESS: WHO DECIDES? 49 problem ends. If such a proposal were taken seriously by enough powerful people in the United States to bring it into practice, a whole bag of new troubles would be opened to plague the person concerned about protecting the free press. Even as "freedom of the press" implies to many the free dom to be heard-a freedom for the consumer, we must not forget that it also implies the freedom to print or not to print-a freedom for the publisher. The First Amendment provides that the government will not pass any laws which abridge press free dom. Although press freedom is not defined in the Bill of Rights, an explicit concern with not pass ing laws which might diminish press freedom appears to be quite clear. When any group-even gov ernment seeking to remedy certain ills which it believes it detects tells a publisher what he must print, it is taking upon itself an omnipotence and paternalism which is not far removed from authori tarianism. It is restricting press freedom in the name of freedom to read. The next step is to tell the publisher what he shall not print.

This paradox (in confusing press freedom with freedom to read) is one of the chief causes for the continuing controversy. It is my belief that "freedom of the press" is not the same thing as "freedom of information." It is obvious that the press can have freedom to print anything it de sires without making available to the reader everything it has avail able to print. Its freedom, in other words, imposes an implicit restric tion on the reader's freedom to have access to every bit of infor mation or point of view. Looking at it in this way, it· is not difficult to see that press free dom does not imply freedom of in formation. The latter term refers to the right of the reader to have all material available for reading, while the former term denotes the right of the publisher to publish or not to publish without external compulsion. The Publisher's Freedom "Freedom of the press" ob viously means many things. Its meaning is determined by the par ticular context and by the par ticular person using it. The pub lisher, for example, stresses the freedom of the press concept, 'while the reader, seeking in vain for his viewpoint or orientation in certain newspapers, stresses the freedom of information concept.

The government official who at tempts to keep certain information from press has his own definition: the newspaper has a right to print something if it can get it-a kind 50 THE FREEMAN Januar1:J of "freedom to print" but not nec essarily a "freedom to get" con cept. Perhaps we try to make the term "freedom of the press" cover too much-to include all the above concepts and others besides. If we were to understand it narrowly, in the sense clearly indicated by its syntax, we would emphasize the press and its freedom to deter mine what it will and will not print and to make this determina tion without interference. This would appear to be at the heart of the term, and those who talk of readers' opinions and viewpoints being ignored or understressed would seem to be referring to something other than "freedom of the press." I like to think about press free dom as freedom belonging to the press. Other types of freedom are important, too, but let us stick to the press's freedom when we are talking about "press freedom."

The press alone, in this view, would be in the position of deter mining what it would or would not print. The press would have no prior restrictions on its editorial prerogatives; this would be press freedom. Those who favor an interpreta tion of the First Amendment that protects "freedom of information" or some right of the people "to know" will not like this definition, of course, for they see it as toe narrow. They should be reminded: however, that the First Amend· ment covers their territory of in· terest also with its provisions oj free speech, free assembly, freE religious worship, and the like. But where, someone will ask, if: the· right of people to read and tc hear? If "freedom of the press" implies the right of the people tc read what they want to read, "freedom of speech" must alsc imply the right of the people tc listen to what they want to listen to. Since there is "freedom of speech," I therefore have a "right"

to have available to my ears all viewpoints from all possible mi norities. ...A\.bsurd! How can any one seriously believe that one kind of freedom assumes another kind of right? Rule by Minority The vision of a better journalis tic world through coercive publish ing rests mainly on the assump tion that important minority view points are not being made known in the United States, and that this is deleterious to a democratic so ciety. Although this main premise is not systematically challenged in this article, it seems incumbent on those who advocate controlled ac cess to name some of the impor tant minority positions that are not being publicized by the Amer1968 ACCESS TO THE PRESS: WHO DECIDES? 51 ican press. The assumption ap pears to be always floating around that the American public is not getting to kno,v about important information and ideas of the ut most importance. The press, of course, is generally the villain. I have the feeling, contrary to the above assumption, that most Amer icans get far more from their newspapers and magazines than they want.

The person who is concerned about what is not in the press does not appear to be primarily con cerned about the freedom of the press; rather he seems disturbed that every possible bit of infor mation is not available everywhere for everybody. His concern, while perhaps "noble" in itself, is fabu lously unrealistic and naive~ In ad dition, this person must certainly recognize that his position is po tentially authoritarian, just as the existing freedom of the press to discriminate (which he bemoans) is potentially restrictive. The Good to Society vs. Social Responsibility He who would compel publica tion justifies his position by using terms such as "social responsibil ity of the press" and "the reader's inherent right to know." He, in other words, puts what he con siders the good to society above \vhat the individual publisher considers to be his right of editorial self-determination.

Few sincere and concerned per sons would quarrel with the po sition that "the good to society" or "social responsibility" are laud able concepts which should be served by the press. However, trouble comes when these theoret ical concepts are applied to the actual workings of the press in so ciety. The what of the concept presents considerable difficulty: What, for instance, is the best way to do the most good to society, and what is the best way to be so cially responsible? There are many who would feel very strongly that forcing minority opinions (espe cially "certain" ones) into a news paper would be very harmful to the "social good," and that this would be the epitome of social ir responsibility. Who Shall Decide? The how of the concept adds further complications. How will decisions be made about what shall or shall not be printed? What \vould be a rational manner of making such determinations if we are to take them· out of the hands of individual publishers and edi tors? A Federal court? A Federal o1nbudsman? An FP A (Federal Press Agency) organized on the lines of the Federal Communica tions Commission?

52 THE FREEMAN Januar~ From among all the "minority" positions in a given community or in the nation, which ones would have a "right" to be published and which ones would not? Which spokesman for anyone "minority" would be published as representa tive of the whole minority? Or would all of them - or many of them - be published, since un doubtedly there is a pluralism in minority opinions even on a sin gle issue? These are basic and im portant questions-questions which would certainly plague the author ity which would have to make such decisions. Minority viewpoints 'which one authoritative body would deem valuable and thus worthy of publi cation might, to another authori tative body that is equally sincere and perspicacious, seem inane, ir rational, or otherwise lacking in value. Undoubtedly, even among the stanchest advocates of minor ity rights, there is preference for S01ne minorities over others. Some persons, for instance, would find the views of the Congress of Racial Equality more to their lik ing than, say, those of the John Birch Society or the Ku Klux Klan. Presumably, if persons with such preferences were members of the determining body, the minor ity views of the latter two "mi nority" groups would find it rather difficult to get "equal" treatment.

Beyond this, there is anothel rather perplexing and closely reo lated problem. What emphash should various minority views reo ceive in the press, or even in II single newspaper? Would this bE decided by the proportion of thE total population which the "mi· nority" under consideration com· prises? Would it be decided on thE basis of the "worth" or "intrinsic value to society" of the viewpoin1 espoused? If so, how would suer. worth be ascertained? Would i1 be decided on the basis of thE economic or political pressurE which a particular "minority' group might bring to· bear on thE power structure? One is temptec to suspect that this would proba· bly be the case. What View Shall Prevail? This brings us to another ques· tion. To some it may not appeal to be important, but it certainh would cry out very quickly fOl an answer under a coercive-print ing system. This is the question oj defining a "minority" group or l "minority" viewpoint. Just wha~ is a minority in the sense of seri ously considering the forced pub lication of its opinions or posi tions? Just as the majority i: composed of many minorities there are minorities within mi norities. How does one determinl which of these minorities shoul< 1968 ACCESS TO THE PRESS: WHO DECIDES? 53 be heard? Or are they all to be heard with equal force? Or, said in another way, just how do we get at the minority opinion?

Many persons will reply that these are unin1portant and theo retical questions that should not be permitted to interfere with the serious consideration of a forced publication system. Sure, they will say, there 'will be problems and weaknesses, but let us not be reac tionary; let us push on in spite of obstacles tov/ard aNew Journal ism in which all opinions receive equal and just airing and no mi nority group can feel slighted by the treatment it receives in the press. This is a beautiful and idealistic aim, indeed, but one which only the most detached and naive person could possibly en vision as being achieved. In conclusion, it seems safe to say that a forced-publishing sys tem will take root only when our society has proceeded much farther along the road toward Orwell's 1984, wherein a paternalistic and omnipotent Power Structure makes our individual decisions for us. And, even then in that wonder land of equality where all opinions will blend deliciously into one big View-Ste\v, I wouldn't be surprised if there is not at least one "mi nority" fretting away some\vhere on the sidelines - misunderstood and fighting fiercely to get a greater voice in social affairs. But, then, perhaps it \von't really mat ter since 111inorities will not exist and there will only be one surpris ingly harmonious and fair majority babbling its one message in a num ber of interesting ways. ~ To Speak, or Not THIS is true liberty, when free-born men, Having to advise the public, n1ay speak free, Which he who can, and will, deserves high praise; Who neither can nor will, n1ay hold his peace; What can be juster in a State than this?

EURIPIDES, The Suppliants GEORGE WINDER "CAVEAT EMPTOR" is a principle of law older than Christianity. It came to us from ancient Rome and must have been in common use long before Justinian prepared his fa mous code. I first realized its importance many years ago in Australia when I heard it expounded by a country Magistrate. It seemed a long way from Rome to that tiny, sun-baked town in the Australian back coun try; but the Magistrate decided the case and quoted the same Latin tag with the same confidence his counterpart might have shown two thousand years ago in ancient Rome. Caveat emptor - let the buyer beware - has terminated the hopes of many thousands of litigants and Mr. Winder, formerly a Solicitor of the Su preme Court in New Zealand. is now farming in England. He has written widely on law, agriculture, and economics. will decide many legal action~ again before paternal government~ throw it into the discard along with much else that belongs essen· tially to a people trained to be reo sponsible for their own actions.