Law Day 2019: We need a free and independent news media

The First Amendment preserves that right.

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Edward Birk
Edward Birk
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By Edward Birk, Special to the Daily Record

A divine spark burns in each of us, waiting to ignite the light of wisdom and human fulfillment.

The spark will wither and die if we are denied the freedom to think and speak and express ourselves as our consciences dictate, unfettered by fear of government retaliation.

This is not my idea, nor is it a revolutionary idea. Neither was it completely new to Thomas Jefferson, James Madison, Alexander Hamilton, Ben Franklin, John Adams and George Washington when they molded it into a sustainable framework for freedom in 1787 by writing the constitution and in 1789 when Madison wrote the Bill of Rights.

Madison and his colleagues turned the course of human events on its head. Before the First Amendment, no other nation recognized that individuals possessed so much power to govern their own lives.

Until that point, most rulers claimed a divine right to control how their subjects thought, believed, lived and died.

Our First Amendment, in delicate balance with the other amendments and the Constitution, puts us in charge of our individual destinies - personal, political, economic and spiritual. No longer were we subjects of those who presumed power to themselves through wealth or might.

If that’s not a good thing, I don’t know what is.

The First Amendment protects five fundamental rights: Freedom of religion, speech, press, assembly and to petition the government for redress of grievances. Together, they guarantee our right to free expression.

Freedom of expression exceeds the sum of these five parts. As intended by our Founders, freedom of expression defines for us the right to realize our full human potential as each of us sees fit according to our understanding of ultimate truth and universal or divine law.

Although only one of the five freedoms in the First Amendment, freedom of the press is nonetheless an essential element of our self-determination through self-government, which the Declaration of Independence tells is instituted to secure these rights, not limit or take them away.

Our governments exist and operate solely with consent of the governed, deriving their just powers from the governed. Freedom of the press is an all-important means to help us keep that proper orientation—government of, by, and for the people, not the other way ‘round.

“The freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.”—James Madison

Without a free press, we cannot knowingly consent to any governing because we will not know what our local, state and federal governments are doing in our names.

How are our elected and appointed representatives spending our taxes? Who is influencing our representatives with soft money and greasing their palms with emoluments? Who is government punishing for having the temerity to speak up?

Take a look at Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018) to see how things can go badly even with a free press.

"I consider the media to be indispensable to democracy. . . We need the media to hold people like me to account. I mean, power can be very addictive and it can be corrosive and it's important for the media to call to account people who abuse their power, whether it be here or elsewhere.”—George W. Bush.

Our Founders believed an educated populace was more important to self-government than government itself. Newspapers, pamphlets, books and other publications allowed citizens to fulfill their responsibility to stay informed.

“The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them.”—Thomas Jefferson, letter from Paris Jan. 16, 1787.

Four score and seven years later, the president who held the nation together long enough to birth a new freedom echoed Jefferson’s words:

“Let the people know the facts, and the country will be safe.” – Abraham Lincoln.

A century later, Ronald Reagan, who suffered barbs from the news media at every turn while in office, said this in spite of his rough treatment by the news media:

“There is no more essential ingredient than a free, strong and independent press to our continued success in what the Founding Fathers called our 'experiment' in self-government,” he said.

So, how are we doing in this fourth century of America’s life?

Good reporting is a thing of courage and beauty, enriching us all. Reporting that is biased, uninformed, sloppy, partisan, filled with errors or flat out false, foreign propaganda is corrosive to our self-government. 

We know the news media and anyone else toiling under the shield of First Amendment must exercise restraint and responsibility.

The big question is who decides and controls fairness? Without question, it is not for government officials or agencies to determine if news media are acting responsibly (except in the context of defamation or certain other violations of law and then it is only the courts).

It is the realm of editors and publishers to determine self-restraint and responsibility. We, in turn, must help keep the editors and publishers intellectually honest, fair and dedicated to seeking the truth.

“The First Amendment guarantees a free press. We in the media must make sure it’s a fair one.”—Allen H. Neuharth, founder of USA Today and the Newseum.

To me, freedom of the press means the ability of news media to investigate and report news of the day without restriction.

Because what makes news often is something that somebody somewhere does not want reported, government and private interests frequently erect barriers to gathering and publishing the news openly.

That’s one of the reasons the Founders fashioned our system of three co-equal branches and one of the reasons Madison wrote the First Amendment.

Human nature is such that we cannot rely on those who are accountable to us to always tell us the truth. It’s not because they are bad people. It’s like President Bush said—it is the nature of government to seize power unto itself and never let it go.

There are thousands of examples of news media—from the smallest community newspapers to the mighty New York Times, from local television stations to CNN—uncovering what someone wanted to hide. Countless examples proving over and over again that government and other institutions of concentrated power are best viewed with a skeptical eye.

Think about “The Jungle” by Upton Sinclair. Watergate. The Pentagon Papers. The My Lai massacre. Iran Contra. Weapons of mass destruction in Iraq. Mass surveillance of Americans. Harvey Weinstein. Separating immigrant children from their parents with little hope of reunification. Priests abusing children under the protection of misguided bishops.

Think about the mass murder at Marjory Stoneman Douglas High School. The school board released a heavily redacted report of services it supposedly had provided to the shooter.

By mistake, the board released a copy that could be unredacted and a newspaper published it in full.

Only because of that mistake did we learn that government failed in providing services to the accused murderer, services which might have prevented the crime he perpetrated.

Who and what were the redactions designed to protect? After the newspaper revealed the supposed “secrets,” what was the government’s reaction? Was it praise for the freedom of our press? No, the judge threatened the newspaper—not the wayward records custodian—with contempt. The newspaper stood its ground. So far there has been, and I wager there will not be any, valid contempt order.

If a free, and courageous, press was not on the job, there is a strong likelihood we would not have heard about any of these things. But doesn’t constant criticism of government officials and agencies damage our society? No.

We have seen that criticism of our government institutions or officials and the revelation of “secrets” do not hurt our society. Rather, it strengthens society. It creates trust.

People say unwanted criticism and scrutiny will deter good people from entering public service. Maybe, but we don’t seem to lack people offering themselves for public positions just yet.

Like sculptors, the Founders revealed our freedoms by chiseling away history’s outdated modes of government. They discovered that we were intended to create our own destinies. That power also makes us responsible for preserving these freedoms. If we don’t use our rights, we will lose these rights. If we act like powerless victims, we abdicate our rights. Take some of my rights if you will protect me. Wrong. Don’t fight city hall. Wrong. There’s nothing I can do about it. Wrong. Lobbyists control Washington. Wrong. The news media won’t listen to me? Wrong. Congress is hopelessly corrupt. Maybe, but we have the vote.  These are favorite complaints of powerless and victimized mindsets. They are freedom’s death knell. Don’t give up. Do something. Take action.

“Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.”—Ronald Reagan.

It’s our job to protect the free press, faults and all. Shout out if you’re as mad as hell and won’t take anymore biased or sloppy reporting or unfair attacks based only on ideologies. Do anything except remaining silent. Otherwise, we’ll have the media and government we deserve.

Subscribe to news media organizations that over time demonstrate a commitment to finding the truth. Pay for news from organizations that correct their mistakes. Get your news from several different sources. Read something from Fox if you’re an MSNBC kind of person. Read something from CNN if you’re Fox friend. Cast a skeptical eye on free media on Facebook and Snapchat. Get outside your echo chamber. Think for yourselves. Never stop believing in a free press and our constitution. Never stop believing that your voice must be heard.

That spark of divinity in each of us will flicker and die if we don’t take responsibility for our Nation and our government of, for, and by the people.

Untold numbers of Americans have fought, died, and been buried giving their last measure to keep the flame of freedom alive in the bold new experiment that is America. I’d hate to meet any of them in some life after this one and have to explain why we couldn’t get out from behind our smartphones enough to participate in our own democracy.

Today, more than ever, we need a strong, free, and independent press.

Edward Birk is a shareholder and news media attorney at Marks Gray. He was a reporter and editor with the Associated Press and public information administrator for the Florida Department of Highway Safety & Motor Vehicles before entering Florida State University College of Law, where he received his J.D. in 1995.





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