The Purpose of Open Journalism and Free Speech
Francis Canavan, the US Supreme Court, and the Present Crises of Censorship and Suppression
Despite our habit of talking about the freedom of speech…the significant questions more often concerned the freedom of publication...
Francis Canavan, S.J., from Freedom of Expression: Purpose as Limit, 1984.
What was the traditional American journalism, that is, the journalism done from the Revolutionary Era up to the transitional window of 2004-2014, for? That is, what was its main purpose?
One should pretty much know the answer to that core question, even if one rejects my assertion that the traditional journalism is now over. However, something has changed enough that I think most educated persons will find the effort of articulating their full answer to be a valuable exercise. It will be a salutary reminder of truths which really are in danger of being seldom taught with conviction to the young ones, and of being quietly abandoned by the “adults.”
Regular readers can already guess what my immediate motivation for asking the question is, as suggested by my use of the word “Suppression” in the subtitle; more on that soon. I will also note that I will primarily be using the little book by Canavan quoted above to help us articulate our answer.
Thoughts on the Purpose
But what thoughts immediately come to mind?
One could regard selling newspapers and their advertisements as simply one kind of business, and hold that that shows us the purpose. But well before our times, many magazines and even local papers relied heavily on donor-support, and typically this support had an openly partisan character. So it is impossible to deny that the main passion which drove “the thousands newspapers that crisscross” the United States, to use Alexis de Tocqueville’s amazed language from the first (1830) volume of Democracy in America, was political. And while the partisan key of this passion was here and there sincerely tempered with a spirit of objectivity/neutrality-seeking community-service, that spirit is itself a highly politics-oriented one.
Tocqueville might provide some help here:
…newspapers make associations, and associations make newspapers. …A newspaper can only exist on condition that it reproduces a doctrine or sentiment common to many men. A newspaper thus always represents an association of which its habitual readers are the members. (DA, II, 2.6; paras 11 and 18)
Yes, one could learn, as many a seasoned publisher did, how to make money off a common sentiment that one no longer much believed in, but even in these cases the sentiment had been the primary factor—it gave birth to the paper, and had to remain at least pretended to. As did the notion that this sentiment served the common good, which meant that the editors and writers would filter the news through the sentiment, but always with some effort to live up to expectations of objective judgment.
But going back to the 1798 error of most Federalists in backing the Alien and Sedition acts, back when the authority of the First Amendment had not yet been so solidified, the troubling question was why your group’s sentiment about the common good, should support the freedom of other ones, ones you necessarily regarded as being in basic error. Why, for example, should the Jeffersonian not only grudgingly admit that a Hamiltonian paper has a right to exist due to the First, but hold additionally that it is good that numerous papers that espouse different views on public policy exist?
What is the purpose, in other words, of what I will be calling “Open Journalism,” a journalism that relishes and encourages debate, and also of what America’s First Amendment calls the rights of free speech and free press? Reviewing the seemingly obvious answer to this question is the main aim of this piece, which is written in the conviction that far too many of our elites no longer believe in it.
One aspect of my conviction, however, is going to seem odd to many on the right, because I believe the turning away from the commitment to Open Journalism, a turn which has radically altered Democrat “liberalism”1 for a decade or so, is now afflicting conservatism as well, albeit in a lesser way.
For my concern has not only to do with the Social Media Censorship Scandal of 2020-forward, which nearly all conservatives acknowledge the existence of, but also with the Suppression Scandal, in which the widespread-covid-vax-harms story is being suppressed on all outlets of reach, whether left or right. Things are so bad, that to acknowledge the operation of this suppression on the right, and especially to take any specific persons to task for it, is to place oneself outside the circle of respectable conservativism.
Indeed, with respect to the conservative side of this, I am about the only writer who is regularly sounding the alarm! See here, here, here, and here.
What my aloneness most points to is a crisis of cowardice in today’s conservatism. But I will admit that the concept of Suppression is a tad tricky to grasp, such that participation in this particular instance of it has been easy for conservative pundits, editors, and politicians to fall into. Any such editor can lazily tell herself, “What I and my platform are doing is not censorship as defined by the First, is far from the covid-vax dogmatism of the Dems, and so, we’re good on this!”
And those first two statements will be correct.
Francis Canavan and the Witness of the Supreme Court
Fr. Canavan was a scholar of Edmund Burke and American constitutional law; he was a Jesuit who edited the important Catholic publication America and who wrote columns for another called The Catholic Eye. See these tributes from America, First Things, and Dawn Eden for more about him. The book of his we’re looking at reviews the thought of older thinkers like Milton, Locke, Spinoza, and Mill on free expression, but begins and ends with chapters on 20th-century Supreme Court decisions. Its title, Freedom of Expression: Purpose as Limit precisely states the core argument, which is that our statesmen and jurists sketched a purpose for the guarantees to free speech and free press, and that that purpose revealed there must be limits to the two rights. Canavan thus aimed his whole book against those we call the Free Speech Absolutists, most notably, Justices William Douglas and Hugo Black. His book should still be read by today’s conservatives, who too-often do not realize that the authentic conservative position on free speech and press issues is not the absolutist one, perhaps in tandem with a similar book from a decade later, David Lowenthal’s No Liberty for License: The Forgotten Logic of the First Amendment. These together remind us that the American tradition, both off and on the Court, long recognized that the free speech-and-press rights did not mean to prohibit laws and government actions against crime-incitement, calls for revolution, obscenity, libel, slander, false advertising, and fighting words.
I quote Canavan because he expertly weaves quotations from the Court into his sketch of the consensus view of the purpose. Readers who focus mainly on the Absolutists v. Non-Absolutists debate of constitutional interpretation, basically the old “ACLU v. its critics” debate of the 60s-through-90s, could get confused by how extensively Canavan quotes Justices who wound up more on the Absolutist side. But he did this to underline, at least for the find-the-purpose part of his argument, what both sides agreed upon about it. Yes, he then turned that finding against the absolutists, but for the purposes of this essay, we can ignore that later step.
Any quotation marks you see in what I quote below, then, are around statements from court opinions. If you want to know which ones, go the book itself. Text with no quotation marks is Canavan’s.
[My] thesis is that the “searching consideration” of the “real problem of defining or delimiting the right” of free speech and free press, which [Justice] Harlan suggested is needed, must start from the purposes which the right is intended to serve, taken in relation to other purposes which the Constitution also intends to achieve. (2)
…The Court and its members have long described freedom of speech and press as “basic to the conception of our government” and as “essential to free government or to the “workings of a free society.” Freedom of thought and speech, as the Court said in 1937, “is the matrix, the indispensable condition, of nearly every other form of freedom.” (2)
“The core value of the Free Speech Clause of the First Amendment,” the Court has said, is “the public interest in having free and unhindered debate on matters of public importance.” …The hypothesis underlying the amendment is that “free debate of ideas will result in the wisest governmental policies.” Therefore, as an early authority said, the evil which the amendment was designed to obviate was “any action of the government by means of which it might prevent such free and general discussion of public matters ...” In the words of Justice Black, “Whatever differences may exist about interpretation of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” (3)
The further purpose, according to Chief Justice Hughes, was “that government may be responsive to the will of the people and that changes may be obtained by lawful means.” Justice Jackson was of the opinion that “the forefathers” protected freedom of speech and press “because they knew of no other way by which free men could conduct representative democracy.” (3)
…The primary purpose of the constitutional guarantee of free speech and press, then, is political: the means by which this purpose is to be achieved has been described by the Court, in the most general terms, as “communication of information or opinion.” The First Amendment assumes, according to the Court, “that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” “The predominant purpose of freedom of the press,” the Court has said, “was to preserve an untrammeled press as a vital source of information.” But beyond the need for information about public affairs, the Court saw the constitutional guarantee as protecting a clash of opinion which fosters the pursuit of political truth and political good. (3)
The metaphor of a “free trade of ideas,” with the corollary notion that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” has been a favorite of the Court since the days of Justice Holmes. The theory behind the metaphor received classic expression in an opinion by Chief Judge Learned Hand of the U.S. Court of Appeals… “The interest which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies—religious, political, economic, or scientific—which are immune from debate and dispute. Back of that is the assumption—itself an orthodoxy, and the one permissible exception—that truth will be most likely to emerge if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts or denies.”(4)
Canavan noted that Justice Frankfurter was among the many jurists who quoted this approvingly, and in his own voice, added this:
The liberal orthodoxy thus expounded is, of course, no more exempt from criticism than any other orthodoxy. But let us take it as the prevailing faith of our liberal society. It asserts that the aim of freedom of expression is truth but, for that very reason, no idea enters the marketplace with a legal presumption that it is true or that the expression of opposing ideas may be legally prohibited. Government serves truth, not by teaching truth or repressing error, but by protecting the market in which truth shall prevail.(4)
…The primary purpose of the First Amendment guarantee, therefore, is to produce a government controlled by a public opinion that has been formed through free and rational debate on public issues.(5)
…Again, as the Court said in New York Times v. Sullivan in 1964 and often repeated, there is a “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The Court also declared in 1969 that it was “now well established that the Constitution protects the right to receive information and ideas.”(5)
The end sought by constitutionally guaranteeing freedom of expression is not solely political, however. “The guarantees for speech and press are not the preserve of political expression or comment upon public affairs.” For one thing, freedom of speech and press “is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community…as it is a social necessity required for the ‘maintenance of our political system and an open society.’”(5)
From the dicta of the Court and of individual justices that have been quoted, one can elaborate a certain point of view of the purposes of the First Amendment’s guarantee of freedom of speech and press. In this view, the guarantee was meant to protect and facilitate the achievement of rational ends by communication among free and ordinarily intelligent people. Chief among these ends is the successful functioning of the democratic political process. But the freedom to express one’s mind is an individual rights as well as a means to social goods; and the social goods to be realized through free expression are much broader than the strictly political. They include the whole range of objects of the human mind, the esthetic as well as the logical and narrowly rational…(6)
Fr. Canavan wrote his own thoughts with a beautiful precision, and read the opinions of others with an eye for the gems. He seemed quite aware that from the higher perspective of political philosophy and the longer one of political history, one could challenge the “orthodoxy” or “faith” of capital-L Liberalism which held that the truth tends to most “emerge” in a society that guarantees freedom of expression, but he respectfully and even lovingly conveyed the broader faith in that freedom which most of our top judges held. He certainly achieved his aim of articulating the American jurists’ consensus view of the purposes of free speech and free press.
And I don’t know about you, but I found myself quite moved by these passages. They seemed pretty common-sense to me when I first read them two decades ago, focused as I then was on how Canavan would use them to ground his interpretational arguments against the absolutists. But this time around, what struck me was how far most Americans on the Democrat half of the spectrum, and not a few on the right side of it also, now are from this consensus.
For a number of appalling “rhetorical” questions, ones which illustrate our present reality by contrasting it to past convictions, came immediately to mind.
The consensus really was, and supposedly still is, that we all should have a “personal right to make their thoughts public and put them before the community”??!
Tell it to the supporters of the AfD in Germany, or to anyone working class in the UK who shares at least some of the views of Tommy Robinson, Anne-Marie Waters, or Morrissey on immigration issues. See 8:23-9:30 of this interview of Douglas Murray.
The consensus really was, and supposedly still is, that the First Amendment “presupposes that there are no orthodoxies—religious, political, economic, or scientific—which are immune from debate and dispute”??!
Tell it to Tucker Carlson, who in a recent interview in which a couple of health experts criticized a single part the present childhood schedule of vaccines, felt obliged to say that
“This will appear on all kinds of social media platforms…maybe the biggest is Youtube, which is owned by Google, …and they will censor this, they will demonitze this video, [as] just so far, you have not attacked vaccines, but you are showing evidence of some skepticism of their efficacy, or the need for them… ….you’re a Stanford-educated physician, but Youtube has decided you’re not allowed to say this.” (25:00)
The consensus really was, and supposedly still is, that “no idea enters the marketplace with a legal presumption that it is true or that the expression of opposing ideas may be legally prohibited” ??!
Tell it to Aaron Kheriaty, who is trying to draw public attention—with no help from MSM--to the Censorship Scandal, that is, to the fact that under the Biden administration we experienced, and are likely continuing to, what one judge hearing Kheriaty’s court case said might be “The worst violation of free speech rights in US history”:
And the consensus really was, and supposedly still is, one that supports “the public interest in having free and unhindered debate” on “public issues” ??!
Tell it to ME, as I try to go through the present content and since-’22 archives of “conservative” media outlets like The Federalist, Blaze Media, The Daily Signal etc., searching for any substantial coverage of the covid-vax-harms story, and continually, coming up short. How could the numerous expert claims of millions of deaths and injuries from the experimental medications not signal the existence of a new “public issue?” Or how could the choice of nearly all conservative outlets to suppress this story, joining the progressivist outlets, be in harmony with a belief that the “widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public?”
I guess that’s a belief they no longer hold.
Now I stress that in refusing to report on this story, media and punditry outlets are not violating Americans’ constitutional guarantee not to have their free speech and press rights abridged by the government. (For examples of such rights-violation, watch the Kheriaty video.) For the outlets are free, and must remain free, to report on what they wish to and to not report on what they don’t.
But clearly, what they are doing is 100% against the classic Liberal and American consensus view of the purpose of a free and active press.
A French Addendum
I have not provided even a sketch of the full history of journalism under the modern liberal democracies, nor of what its duties were assumed to be by liberal democracy’s most authoritative thinkers. One could add to what I’ve provided via Canavan, who zeroes in on what leading US jurists said during the years 1920-1980, what most of the Founders said, what leading Liberal lights from around the world said, etc.
I will at least add the following though, a witness to the purpose of Open Journalism from the French Liberals of the 1820s-1840s called the “Doctrinaires,” who included François Guizot, Pierre-Paul Royer-Collard, and Charles Rémusat.2
This witness is useful, because these Liberals were less dogmatic and less rights-talky3 in the way they defended press freedom; they take a different angle into the question.
I will be quoting from Aurelian Craiutu’s fine Liberalism under Siege: The Political Thought of the French Doctrinaires, specifically, from its chapter on what the French of the period called the principle of publicité, which holds that the state and good statesmen should accept and encourage open public discussion of government policy.
One must begin by remembering the background of the issue for the French:
In 1781, eight years before the French Revolution, Jacques Necker, …finance minister, became famous when he made public the state budget for the first time in the history of the French monarchy. …the practice had always been to make a mystery of the state of finances. Necker thought that this practice was both illegitimate and ineffective… (249)
Basically, what the Doctrinaires meant by publicité, or publicity, is the opposite of that practice. It seems they had to argue more directly and specifically for what the Americans of the same era tended to take for granted, that the decision-making of a republican government on most issues would be discussed in public.
Since the main goal of representative government is to provide the conditions for an unfettered confrontation of interests and opinions, Guizot regarded publicity and debates as essential to creating a public sphere partly similar to the economic market, based on free competition of interests and ideas. …Thus publicity alters the nature of the interaction between government and society. (251)
If this is right, it would follow that the huge Suppression of the covid-vax-harms story happening now, which definitely fetters discussion and is a major curtailment of publicité, alters the nature of that fundamental interaction also.
The most original aspect of Guizot’s theory of publicity was arguably the definition of it as the cornerstone of representative government. “Theoretically, publicity is perhaps the most essential characteristic of representative government…” (252)
“Where publicity is lacking, there may be elections, assemblies, and deliberations, but people do not believe in them and they are right to do so. Haven’t we seen that without publicity [elections, assemblies, and deliberations] are nothing else than a vain simulacrum, an insulting comedy?” (252)
Some of the Doctrinaires’ language reminds one of the idea of “deliberative democracy,” at least as it was originally derived by the great Joseph Bessette from certain Federalist numbers:
“Deliberation,” wrote Rémusat, “is what constitutes the character and excellence of representative government. From all sides, people demand and expect that the government truly become a public entity by means of a free press, common deliberation, and popular elections.” (254)
The aim of the liberty of the press, wrote Guizot, is “to develop and manifest public reason which wants all that is necessary and which is equally favorable to the reasonable needs of power, as well as to the legitimate rights of citizens. (265)
Government ministers have “reasonable needs,” by which presumably Guizot means to suggest that some decisions might be made out of public view, a suggestion most Americans tend to accept regarding many military and foreign policy decisions; but notice that the simultaneous desire of “public reason” for information extends to “all that is necessary” to make good decisions, at least about the kinds of issues the citizens are entitled by right to discuss and influence. Guizot and all the doctrinaires would detest a government, or a corporate press, that sought to kick public reason out of, and thus “mystify,” major areas of domestic policy and operations, such as government finance, immigration, vote counting, or vaccination.
The Democrat betrayal of both Open Journalism and Freedom of Expression is so fundamental and extensive, so brazenly violative of countless statements by the pre-aughties ACLU and other liberal paragons of the 20th century, that no educated person should speak of typical Democrats as “liberals” anymore. My recommended term for them now is “progressivists.”
The “Liberalism” of Alexis de Tocqueville, if we accept that labelling of his political creed--as Pierre Manent says we should--, was fairly close to that of the Doctrinaires and quite influenced by them, though his political philosophic system was undoubtedly much richer, and he did have significant differences with them, being generally both more liberal and more democracy-facilitating than they on most issues.
For some, such as Benjamin Constant, the Doctrinaires were not “doctrinaire” and rights-focused enough. See Craiutu’s discussion, 256-266, of their record on key Restoration-era press laws, which from a Constantian or a typical American perspective, was a pretty mixed bag, even though it might be defended as making the best of what France’s new constitutional monarchy and Chamber of Deputies could deliver at the time.
really good essay
Excellent piece Carl- I have shared it with my Politics and the Media students, who yesterday read for class mid 20th century liberal Alexander Meikeljohn's Free Speech and Its Relation to self Government. He wrote: 'the freedom of mind which befits members of a self-governing society is not a given and fixed part of human nature. It can be increased and established by learning, by learning, by the unhindered flow of accurate information, by giving men health and vigor and security, by bringing them together in activities of communication and mutual understanding." (16-17)
https://archive.org/details/in.ernet.dli.2015.84399