It was 225 years ago last December when Virginia became the 11th and final state needed to ratify the 10 constitutional amendments now known as the Bill of Rights.

The amendments guarantee a variety of individual rights, ranging from the free exercise of religion to freedom of speech, the right to fair legal procedures and the right to bear arms.

The First Amendment also provides for freedom of the press. It's the only industry the Founding Fathers saw fit to single out, the only commercial activity to receive specific, constitutional safeguards.

Today, with public opinion regarding the media near an all-time low - when the president himself regularly attacks news outlets and denigrates stories he doesn't like as "fake news" - the decision to enshrine press freedom may seem an archaic act of faith.

So why did they do it? Why did the Framers feel the need to offer such protection - and without public support, is even the First Amendment a strong enough shield to save the press from the societal and economic forces it faces today?

'There wouldn't have been an independent United States without a free press'

Kenton Bird, who served 12 years as director of the University of Idaho School of Journalism and Mass Media and is now director of general education at UI, said the same forces that sparked the American Revolution led to the early appreciation for press freedom.

Colonists felt tyrannized under British rule. The distant king and his royal governors ignored their concerns, so written communications became a major avenue for voicing grievances.

"Colonial printers were the main vehicle through which the revolution was mobilized," Bird said. "The First Amendment was firmly rooted in that historical context. The Framers, particularly James Madison, knew there wouldn't have been an independent United States without a free press."

Ken Paulson, president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University, said the Bill of Rights was also a commitment to the anti-federalists who initially opposed ratification of the Constitution.

"It wasn't the Founding Fathers (who wanted to safeguard the press) so much as the founding generation of Americans," Paulson said. "The federalists tried to get the Constitution ratified, but couldn't get the support of the states. So they compromised; they promised certain rights to the people. People wanted a free press to keep an eye on the people in power."

And there was a need for such scrutiny, as quickly became apparent. For almost as soon as the Bill of Rights was ratified, the federal government began targeting "undesirable elements."

In an eerie preview of the immigration debate roiling American society today, Congress passed the Alien and Sedition Acts in 1798. The legislation made it harder for immigrants to become citizens, allowed the government to imprison or deport foreigners based solely on their nation of origin, and tried to suppress criticism of Congress and the president.

Nearly two dozen newspaper editors were subsequently arrested under the law. Supporters said the legislation was necessary at a time when tensions were increasing with France. Critics, though, noted that immigrants happened to be big supporters of the minority Democratic-Republican party, led by Vice President Thomas Jefferson. In their view, the measures had less to do with national security than with the majority party acting to protect its own interests.

'Function of free speech ... is to invite dispute.'

The Alien and Sedition Acts were a major factor in the 1800 elections. After Jefferson won the White House and his Democratic-Republican party gained control of Congress, most of its provisions were allowed to expire.

It wasn't until the 1900s, however, that freedom of speech and freedom of the press really stepped down from their constitutional pedestal and became rights that individuals and newspapers could rely on in their daily lives.

Paulson said that's because, for the first century of its existence, the Bill of Rights was viewed largely as enshrining rights at the federal level, rather than the state and local level.

"Until you had the Equal Protection Clause, you couldn't challenge state laws as violating the U.S. Constitution," he said.

The Equal Protection Clause, ratified in 1868 as part of the 14th Amendment, says states can't deny "any person within (their) jurisdiction equal protection of the law."

In a 1925 case, Gitlow v. New York, the Supreme Court clarified that free speech and free press protections extend to the states. In subsequent cases, the breadth and nature of those protections gradually increased.

In 1931, for example, the definition of protected speech expanded to include non-verbal forms of expression, when the court overturned the conviction of a California woman who displayed the Communist flag.

In the 1949 Terminiello v. Chicago decision, Justice William Douglas acknowledged the often uncomfortable nature of free speech, noting that the "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

Arthur Terminiello was an early version of today's shock artists, using inflammatory rhetoric to criticize various political and racial groups. He was fined $100 for breach of peace, after 1,000 protesters showed up to oppose one of his speeches.

Writing for the majority, which overturned the local ordinance, Douglas said provocative and challenging speech "may have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected. There is no room under our Constitution for a more restrictive view, for the alternative would lead to standardization of ideas."

Supreme Court ruling opens door to investigative reporting

For the press itself, however, the real "game-changer" came in 1964, in New York Times Co. v. Sullivan.

"It was transformative," Paulson said. "When you talk about freedom of the press, it all changed the day the Supreme Court concluded that journalists have an extraordinarily important role to play in American society, and that they're entitled to make the occasional mistake."

The case involved an ad in the New York Times that criticized Alabama's handling of various civil rights protests. The ad contained a handful of errors, which allowed officials to successfully sue the paper for libel.

The Supreme Court unanimously overturned the lower court decision, saying public officials can't sue for libel unless the news outlet acted with "actual malice," meaning it knew its reporting was false or showed "reckless disregard" for the truth.

In a 1991 book about the case, former New York Times reporter Anthony Lewis said the lawsuit was part of a concerted campaign by elected officials all across the South to discourage media coverage of the civil rights abuses.

"If the ruling had gone the other way, newspapers would have been very reluctant to report on civil rights violations," Paulson said. "The ruling said as long as you're writing about public officials, and you act with significant professional care, there's no likelihood you can be successfully sued for libel. That was a total game-changer. It opened the door to investigative reporting everywhere. The case helped reporters do their job and helped the press fulfill the mission handed to it by the first generation of Americans."

'If people don't trust you, they aren't going to buy your paper.'

Today, newspapers and other media outlets find themselves in an environment where the need for public scrutiny of government and business is as great as ever - yet trust in the press is near an all-time low.

As a result, the industry is threatened not so much by a weakening of its legal protections, as by the continued erosion of its economic base.

"It doesn't do you any good to be a watchdog if people don't trust you," Paulson said. "And if people don't trust you, they aren't going to buy your paper."

Lewiston Tribune Publisher Nathan Alford said that's the challenge for this generation of colonial printers.

"How do we continue to fuel the news-gathering arm of the Constitution," he said. "That's our charge."

When the Tribune opened its doors 125 years ago, it did so during what Paulson described as "the golden age of American publishing." There was initially no competition - and up until the 1950s, minimal competition from radio or other media outlets. Most small towns had at least one newspaper, and many Americans read two or three papers each day.

That golden age, though, has long since departed. Newspapers today compete with hundreds of other media and entertainment outlets, while anyone with an internet connection can broadcast opinions presented as facts.

"There's no longer a unifying medium," said UI's Kenton Bird. "The dissemination of multiple viewpoints gives the appearance of a lively public dialog, but audiences are so diffused it's hard to tell what information they're seeing or reading in common."

In this "Wild West" of news and opinion, Alford said, what sets the traditional media apart is the industry's journalistic standards: checking facts, seeking out sources with multiple views, allowing diverse voices to be heard.

The Founding Fathers "believed the 'marketplace of ideas' would ultimately yield the best results for society," Alford said. "We just need to keep at it. Those who want to question our credibility can do so, but if we keep our head down and focus on those fundamental values, I believe we'll do well by our community and state. Let's keep doing our job, as charged by the founders of this country."


Spence may be contacted at or (208) 791-9168.

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