Appendix 1

Founding Principles

The founders believed that the United States needed a free and independent press to maintain liberty and to make real the promise of democratic governance. They understood, as well, that it was essential for the national and state governments to act to facilitate the establishment of newspapers and to assure that they could easily and widely circulate. To this end, they supported a variety of postal and printing subsidies.

Thomas Jefferson, James Madison and their compatriots were not casual revolutionaries. They saw it as their duty to go beyond merely outlining theories about what might make a republic. They were committed to the practical work of making that republic functional.

As such, the founders did not merely promise a free press, they used the authority of the government to establish the policies and subsidies that would sustain a free press.

The words of the patriots, so often neglected by contemporary media and political players who have allowed the infrastructure of democracy to decay and crumble, remain as resonant and clear in the 21st century as when they were put to paper in the days of revolution and nation building.

On the Press as the Guarantor of Liberty

The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

Andrew Hamilton, the attorney who argued in defense of New York printer John Peter Zenger, who in 1735 was charged with publishing “seditious libels” against the British governor of New York state. The jury, ignoring the instructions of the judge, accepted Hamilton’s argument that a free press was an essential check on arbitrary power.¹

The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.

Gouverneur Morris, the great-grandson of Lewis Morris, the New York politician who hired Zenger to publish articles critical of the colonial governor. Gouverneur Morris was a key author of the Constitution of the United States and a prime advocate for what he described as “a vigorous government” that backed the founding document’s words up with policies and expenditures.²

The liberty of the press is the great bulwark of the liberty of the people: It is, therefore, the incumbent Duty of those who are constituted the Guardians of the People’s Rights to defend and maintain it.

Massachusetts House of Representatives, resolution passed March 3, 1768, in response to a request by the British governor of the colony that it support an effort to prosecute the Boston Gazette, a radical newspaper that featured the writings of outspoken patriot Joseph Warren, for seditious libel. The resolution was advanced by Samuel Adams and his allies in the chamber.³ Colonial legislatures enacted state constitutions that frequently referred to liberty of the press as “one of the blessings of a free people,” “the chief bulwark and support of Liberty in general” and the “great bulwark of our Constitution.”⁴

I am no friend of licentiousness, but the liberty of the press must be preserved sacred, or all is over.

The Rev. Andrew Eliot, April 18, 1768, leading Boston patriot, writing during the Boston Gazette struggle.⁵ Argued Eliot (May 13, 1767): “Nothing is of greater importance than to secure the entire freedom of publishing, without fear, any censures upon public measures. The liberty of the press is the palladium of English liberty. If this is gone, all is gone.”

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

Continental Congress, “To the Inhabitants of the Province of Quebec, resolution enacted in 1774.⁶

There is no declaration of any kind for preserving the Liberty of the Press …

George Mason, delegate to the Constitutional Convention of 1787, explaining why he would not sign the document he had played an essential role in crafting. With delegates Elbridge Gerry and Thomas Pinckney, he tried to include language in the original document that read: “the liberty of the press should be inviolably observed.”⁷

The framers of it; actuated by the true spirit of such a government, which ever abominates and suppresses all free enquiry and discussion, have made no provision for the liberty of the press, that grand palladium of freedom, and scourge of tyrants; but observed a total silence on that head. It is the opinion of some great writers, that if the liberty of the press, by an institution of religion, or otherwise, could be rendered sacred, even in Turkey, that despotism would fly before it.

Centinel, “To the Freemen of Pennsylvania,” October 5, 1787. The Centinel letters, a series of 24 articles, appeared in the Philadelphia Independent Gazetteer and the Freeman’s Journal between October 5, 1787, and November 24, 1788. Historians believe they were written by Samuel Bryan and Eleazer Oswald, both ardent advocates of a strong free press as an essential check on tyranny that needed to be protected and supported by the new republic. Campaigning for the liberty of the press was central to the push for adoption of a Bill of Rights.⁸

On the 23d, Mr. Madison made a report to the House of Representatives on the subject, which was taken up for consideration on the 24th; whereupon …

Provided, That the two articles which by the amendments of the Senate are now proposed to be inserted as the third and eighth articles, shall be amended to read as followeth:—

Article the third. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances

Senate Journal, September 24, 1789, reflecting the final stages of the debate on the first amendment to the Constitution of the United States.⁹

To preserve the freedom of the human mind then & freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, & speak as we think, the condition of man will proceed in improvement.

Thomas Jefferson, 1799. Jefferson wrote these words in the midst of the first great battle over freedom of the press in the United States, when the administration of President John Adams and its Federalist allies in Congress were using the Alien and Sedition Acts to jail critical editors such as the Vermont printer, newspaper editor and politician Matthew Lyon. Jefferson battled Adams in 1800, making liberty of the press a central issue. Lyon, elected to Congress while serving in jail, cast the deciding vote for Jefferson when the election went to the U.S. Congress following an Electoral College tie.¹⁰

The press (is) the only tocsin of a nation …

President Thomas Jefferson, 1802. Even as he objected, often passionately, to negative newspaper coverage, Jefferson held to the founding view that “The only security of all is in a free press.”¹¹

In an instant the fairy spell of delusion is dissipated—the tremendous authority of this august and magnanimous despot, like the enchanted castle of the magician, vanishes for ever.

Tunis Wortman, 1800. This New York lawyer and political activist gave voice to the Enlightenment faith that knowledge was transformational and that a free and widely circulated press was essential to America’s democratic experiment. While Jefferson and others saw the press as a guardian of liberty, Wortman recognized it also as a champion of freedom.¹²

The most informed and judicious of our nation, believe that such a press would go further to remove ignorance, and her offspring superstition and prejudice, than all other means ... Such a paper, comprising a summary of religious and political events, &c. on the one hand; and on the other, exhibiting the feelings, disposition, improvements, and prospects of the Indians; their traditions, their true character, as it once was and as it now is; the ways and means most likely to throw the mantle of civilization over all tribes; and such other matter as will tend to diffuse proper and correct impressions in regard to their condition—such a paper could not fail to create much interest in the American community, favourable to the aborigines, and to have a powerful influence on the advancement of the Indians themselves.

Elias Boudinot, editor of The Cherokee Phoenix, appealing for support of the newspapers in 1826. Boudinot, a Cherokee Indian, was a pioneering Native American editor who did much to advance an understanding of newspapers as a tool for communal empowerment and education of the broader populace. Among other things, he argued that a newspaper could challenge bigotries and ignorance directly. “We shall also feel ourselves bound to correct all misstatements,” he argued in the pages of the Phoenix.¹³

We wish to plead our own cause. Too long have others spoken for us. Too long has the publick been deceived by misrepresentations, in things which concern us dearly, though in the estimation of some mere trifles; for though there are many in society who exercise towards us benevolent feelings; still (with sorrow we confess it) there are others who make it their business to enlarge upon the least trifle, which tends to the discredit of any person of color; and pronounce anathemas and denounce our whole body for the misconduct of this guilty one . . . The civil rights of a people being the greatest value, it shall ever be our duty to vindicate our brethren, when oppressed, and to lay the case before the publick. We shall also urge upon our brethren, (who are qualified by the laws of the different states) the expediency of using their elective franchise; and of making an independent (use) of the same.

Samuel Cornish and John Russwurm, 1827, introducing their publication Freedom’s Journal, the first African American–owned and–operated newspaper published in the United States. Cornish and Russwurm, writing less than a year after the death of Jefferson and almost a decade before the death of Madison, expanded the understanding of the vital role that a diversely owned and operated free press would have in a democratic state.¹⁴

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.

Hugo Black, 1971, from the U.S. Supreme Court’s decision in New York Times Co. v. United States, the Pentagon Papers case.¹⁵

On the Use of Government Policy and Subsidies to Sustain a Free Press

For the purpose of diffusing knowledge, as well as extending the living principle of government to every part of the united states—every state—city—county—village—and township in the union, should be tied together by means of the post-office. This is the true non-electric wire of government. It is the only means of conveying heat and light to every individual in the federal commonwealth. Sweden lost her liberties, says the abbe Raynal, because her citizens were so scattered, that they had no means of acting in concert with each other. It should be a constant injunction to the postmasters, to convey newspapers free of all charge for postage. They are not only the vehicles of knowledge and intelligence, but the centinels of the liberties of our country.

Benjamin Rush, “Address to the People of the United States,” 1787. Rush made the linkage of liberty and a free press–conveyed to the people via the subsidy of free postage–a part of his campaign to secure adoption of an American constitution.¹⁶

The way to prevent these irregular interpositions of the people is to give them full information of their affairs thro’ the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people. 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, 1787, arguing both for a free press and for the postal subsidy that would mean that “every man should receive those papers.”¹⁷

For my part I entertain a high idea of the utility of periodical publications; insomuch as I could heartily desire, copies of ... magazines, as well as common Gazettes, might be spread through every city, town, and village in the United States. I consider such vehicles of knowledge more happily calculated than any other to preserve the liberty, stimulate the industry, and ameliorate the morals of a free and enlightened people.

George Washington, 1788, arguing not just for a free press but for systems to guarantee that “magazines, as well as common Gazettes, might be spread through every city, town, and village in the United States.”¹⁸

Public opinion sets bounds to every government, and is the real sovereign in every free one ...

The larger a country, the less easy for its real opinion to be ascertained, and the less difficult to be counterfeited; when ascertained or presumed, the more respectable it is in the eyes of individuals. This is favorable to the authority of government. For the same reason, the more extensive a country, the more insignificant is each individual in his own eyes. This may be unfavorable to liberty.

Whatever facilitates a general intercourse of sentiments, as good roads, domestic commerce, a free press, and particularly a circulation of newspapers through the entire body of the people, and Representatives going from, and returning among every part of them, is equivalent to a contraction of territorial limits, and is favorable to liberty, where these may be too extensive.

James Madison, 1791. Arguing for postal subsidies, the father of the Constitution recognized that the free-press protection in the Bill of Rights was made real by policies that promoted “a circulation of newspapers through the entire body of the people.”¹⁹

I can not forbear to recommend a repeal of the tax on the transportation of public prints. There is no resource so firm for the Government of the United States as the affections of the people, guided by an enlightened policy; and to this primary good nothing can conduce more than a faithful representation of public proceedings, diffused without restraint throughout the United States.

George Washington, 1793. In his fifth address to the nation as its first president, Washington sided with those who supported the free distribution of news reports on government affairs “without restraint throughout the United States.”²⁰

Weighing all probabilities of expense as well as of income, there is reasonable ground of confidence that we may now safely dispense with . . . the postage on news papers . . . to facilitate the progress of information.

Thomas Jefferson, 1801, from his first annual message as president to the Congress and the American people. Eliminating postage costs was seen by democrats as an essential guarantee that a free press would be available to all.²¹

(We have become) a nation of newspaper readers.

Portfolio, 1801. This prominent Philadelphia newspaper celebrated the growth in American publishing that resulted from postal and governmental subsidies. In this time, “Under the fostering arm of the government, the press enjoyed special privileges accorded to no other genre of print . . . in the United States news was potentially accessible to all.”²²