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host · 12-30-2005, 12:28 AM

Quote:

Originally Posted by alansmithee

I'm personally interested where this idea of an independant, noble press came from. At best, media outlets are platforms for personal agendas by the reporters, journalists, or editors. At worst, they are merely a medium for getting people to BUY MORE STUFF!!11!1!11! I don't see really a time when this was extraordinarily different. And I also see no problem with the gov't using said media for their purposes. If the media seeks to impose themselves as some check on gov't power, the gov't needs to check media power, or work to keep it in line.

Since at least 1735, when a New York court ruled for the acquittal of a publisher who was jailed by the royal governor for publishing the works of other authors that were deemed by the governor to be "libelous", due to their criticism of the government, thus overturning the British libel law that had kept the press in check, citizens of the colonies moved towards the principle that "truth is an absolute defense. This decision proved to not only redefine the law of libel and slander but also to lay the foundation for the freedom of the press that we enjoy today"..

Quote:

http://www.courts.state.ny.us/history/zenger.htm
The Trial of John Peter Zenger

In the early 1730's, the Colony of New York was under the jurisdiction of Governor William Cosby. The New York Weekly Journal, America's first independent political paper, became critical of the Governor after he replaced Lewis Morris, the Chief Justice of New York, for deciding a lawsuit against the Governor. The critical articles were authored by James Alexander, the founder and editorialist of the New York Weekly Journal, and printed by John Peter Zenger. Alas, it was the hapless printer who was sued by the Governor "for printing and publishing several seditious libels dispersed throughout his journals or newspapers, entitled The New York Weekly Journal; as having in them many things tending to raise factions and tumults among the people of this Province, inflaming their minds with contempt of His Majesty's government, and greatly disturbing the peace thereof" (Bench Warrant for Arrest of John Peter Zenger, November 2, 1734).

Zenger was defended by Philadelphia attorney Andrew Hamilton, who argued that the published statements could not be libelous if they were true. English law at the time, which was designed to protect the government from critical elements, dictated that truth was not a defense to libel. The jury, however, exonerated Zenger thereby establishing an ongoing central tenet to defamation law: that truth is an absolute defense. This decision proved to not only redefine the law of libel and slander but also to lay the foundation for the freedom of the press that we enjoy today.

Although Zenger did not author the articles critical of the Royal Governor he endured jail (bail was set inordinately high) during the proceedings. In addition, his wife continued to publish The New York Weekly Journal during his incarceration.

Alexander Hamilton, a framer of the U.S. Constitution, and the author of the Federalist Papers, wrote that a bill of rights held the potential of endangering the preservation of the very rights that it described. Hamilton noted that, unlike the British subjects of the monarch, it is the people who reserve all rights not expressly ceded to the government, and not the other way around.

alansmithee, I find your opinion that "If the media seeks to impose themselves as some check on gov't power, the gov't needs to check media power, or work to keep it in line."...to be seriously misinformed, if it is not intended as satirical. Elected officials who devote their efforts as you describe, use power extended to them by the people, to impede the peoples' "right to know". How can such efforts conform to an oath to "protect and defend the constitution"?

Quote:

http://press-pubs.uchicago.edu/found..._rightss7.html
Document 7

Alexander Hamilton, Federalist, no. 84, 575--81
28 May 1788

The most considerable of these remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New-York is of this number. And yet the opposers of the new system in this state, who profess an unlimited admiration for its constitution, are among the most intemperate partizans of a bill of rights. To justify their zeal in this matter, they alledge two things; one is, that though the constitution of New-York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favour of particular privileges and rights, which in substance amount to the same thing; the other is, that the constitution adopts in their full extent the common and statute law of Great-Britain, by which many other rights not expressed in it are equally secured.

To the first I answer, that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions.......

.....It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.

But a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If therefore the loud clamours against the plan of the convention on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this state. But the truth is, that both of them contain all, which in relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe that there is not a syllable concerning it in the constitution of this state, and in the next, I contend that whatever has been said about it in that of any other state, amounts to nothing. What signifies a declaration that "the liberty of the press shall be inviolably preserved?" What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.1 And here, after all, as intimated upon another occasion, must we seek for the only solid basis of all our rights.

There remains but one other view of this matter to conclude the point. The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS......

.....It may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing. It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent that much of what has been said on this subject rests merely on verbal and nominal distinctions, which are entirely foreign from the substance of the thing.

1. To show that there is a power in the constitution by which the liberty of the press may be affected, recourse has been had to the power of taxation......And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all, general declarations respecting the liberty of the press will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution which has nothing of the kind. It would be quite as significant to declare that government ought to be free, that taxes ought not to be excessive, &c., as that the liberty of the press ought not to be restrained.

[quote]http://www.law.cornell.edu/supct/htm...3_0713_ZO.html
403 U.S. 713
New York Times Co. v. United States
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 1873 Argued: June 26, 1971 --- Decided: June 30, 1971[*]

[p*714] PER CURIAM

We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp. 942, 943.

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York, in the New York Times case, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in the Washington Post case, held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.

Quote:

http://www.law.cornell.edu/supct/htm...3_0713_ZC.html
BLACK, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

403 U.S. 713
New York Times Co. v. United States
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 1873 Argued: June 26, 1971 --- Decided: June 30, 1971[*]

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.

I adhere to the view that the Government's case against the Washington Post should have been dismissed, and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe [p715] that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view, it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. [n1] They especially feared that the [p716] new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. [n2]

(Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men [p717] that they were, wrote in language they earnestly believed could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press. . . ." Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

<h3>In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. 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 government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.</h3>

The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only [p718] say, Mr. Justice, that to me it is equally obvious that "no law" does not mean "no law," and I would seek to persuade the Court that that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States. [n3]

And the Government argues in its brief that, in spite of the First Amendment,

[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief. [n4]

In other words, we are asked to hold that, despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." The Government does not even attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching contention that the courts should take it upon themselves to "make" a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. [n5] See concurring opinion of MR. JUSTICE DOUGLAS, [p719] post at 721-722. To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice that he was -- when the Court held a man could not be punished for attending a meeting run by Communists.

The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free [p720] assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government. [n6]

1. In introducing the Bill of Rights in the House of Representatives, Madison said:

[B]ut I believe that the great mass of the people who opposed [the Constitution] disliked it because it did not contain effectual provisions against the encroachments on particular rights. . . .

1 Annals of Cong. 433. Congressman Goodhue added:

[I]t is the wish of many of our constituents that something should be added to the Constitution to secure in a stronger manner their liberties from the inroads of power.

Id. at 426......

....5. Compare the views of the Solicitor General with those of James Madison, the author of the First Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said:

If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.

1 Annals of Cong. 439.

When the executive branch of government attempted to prevent the publication of the Pentagon Papers during the Vietnam war, on the grounds of "national security", Justice Black's concurring opinion for the majority, excerpted above, describes all that is needed to obtain an "American" point of view concerning the role of the press as guardians of the people, and not of the government.

Read Justice Black's bold print comments in the short paragraph above, and then consider the stereo messages of Rupert Murdoch's foxnews and NYpost that I earlier supplied here: http://www.tfproject.org/tfp/showpos...&postcount=310 .

Why do our V.P. and many American conservatives prefer to have their "news" delivered via an Australian media mogul's News Corp. assets, foxnews and the NYpost, when they align themselves with the government, and clearly against the right of the governed to have access to the truth about the questionable actions of their government?