Freedom of the Press/Contributions
What specific events or ideas contributed to its identification as a fundamental right?
In 1789, notably before the Bill of Rights was adopted, Massachusetts Chief Justice William Cushing wrote, “The propagating literature and knowledge by printing or otherwise tends to illuminate men's minds and to establish them in principles of freedom. But it cannot be denied also, that a free scanning of the conduct of the administration and shewing the tendency of it, and where truth will warrant, making it manifest that it is subversive of all law, liberty, and the Constitution; it can't be denied.” Cushing seemed to be concerned with sedition and libel, which had been the subject of prosecutions, such as the Zenger case in 1735, throughout the pre-revolutionary American colonies. A decade later, the Federalist Party in the 5th Congress with John Adams as president, passed the Alien and Sedition acts which clamped down on free speech and press before later being rolled back under Thomas Jefferson’s administration. (Charles & O'Neill 2012)
The role of adversarial press in both the American and French revolutions should not be neglected as foundational events that contributed to the identification of the right to a free press; pamphleteering, self-publishing, and revolutionary periodicals were important uses of media that furthered public discord, and were largely viewed as instrumental to the success of the revolutions—something Chief Justice Cushing later referred to in his 1789 letter to John Adams. The institution of an adversarial press was thought to provoke a responsive government, and ultimately be a way of avoiding violent revolution by creating public pressure.
Following the French Revolution, the full-scale liberation of the press was established—upending much of the established models of publishing and paving the way for later reforms that ultimately shaped modern copyright and piracy protections. This, depending on how broad a conception of free press we consider, may have been a certain sort of backsliding. (Wresch 2003)
A few years removed from Cushing’s letter to John Adams, the United States Constitution was amended with the Bill of Rights, which protected the freedom of expression and press as a foundational aspect of human liberty. (That is to say, for example, the American third amendment right to be free from quartering soldiers was created in response to the living memory of the abuse under colonial rule.) In the case of the freedom of the press, the abuses to publication in both France and the United Stated in their pre-revolutionary periods set the stage for the protection of the freedom of the press in these given case studies.
In 1804 Jefferson said “While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so. They have accordingly, all of them, made provisions for punishing slander, which those who have time and inclination resort to for the vindication of their characters." (Scherr 2016)
In the American context, the protections for the freedom of the press gradually expanded to the states through the Fourteenth Amendment, with the landmark Supreme Court case Near v. Minnesota in 1931. Prior restraint was deemed unconstitutional even on the state level, and the protections for a free press were expanded accordingly.
Internationally, the recognition of the freedom of the press, and human rights more generally, came much more recently in history. Following the Second World War, the United Nations convened in 1948 to draft the Universal Declaration of Human Rights (UDHR). As the human rights theorist Henry Shue suggests in his book Basic Rights, human rights are often created in response to reliable and predictable threats of abuse, most often those that are in living memory. In response to the violations of human rights that took place during World War II, the assertion of certain universal human rights were take up so as to set a standard for the international community, and be regarded as the net beneath which no one should be allowed to fall.
Article 19 in the UN Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The flexibility of the wording of this right in the UDHR serves as a method for ensuring that there need not be constant revisions as technology and culture advance around the world, and also to avoid creating an implicitly hierarchical list or pyramid of forms of expression that must be protected above all else.
The sedimentation of the right into International human rights law has continued long after being drafted into the UDHR. “Since its inclusion in Article 19 of the Universal Declaration of Human Rights, the right to freedom of opinion and expression has been protected in all of the relevant international human rights treaties. In international law, freedom to express opinions and ideas is considered essential at both an individual level, insofar as it contributes to the full development of a person, and being a foundation stone of democratic society.” (Howie 2018)
References:
Patrick J. Charles & Kevin Francis O'Neill, Saving the Press Clause from Ruin: The Customary Origins of a Free Press as Interface to the Present and Future, 2012 UTAH L. REV. 1691 (2012)
Emily Howie (2018) Protecting the human right to freedom of expression in international law, International Journal of Speech-Language Pathology, 20:1, 12-15, DOI: 10.1080/17549507.2018.1392612
Near v. Minnesota 283 U.S. 697 (https://www.oyez.org/cases/1900-1940/283us697)
Scherr, A. (2016). Thomas Jefferson, the “Libertarian” Jeffersonians of 1799, and Leonard W. Levy’s Freedom of the Press. Journalism History, 42(2), 58-69.)
Shue, Henry. Basic Rights : Subsistence, Affluence, and U.S. Foreign Policy. 40th anniversary edition. Princeton: Princeton University Press, 2020.
Universal Declaration of Human Rights: https://www.un.org/en/about-us/universal-declaration-of-human-rights
Wresch, William. "Perspectives on the Right to Publish: Global Inequalities, Digital Publications, and the Legacy of Revolutionary France." Ethics and Information Technology, vol. 5, no. 2, 2003, pp. 117-127.