I'll need your help with this question: How many of you really believe that the public is really capable of making important decisions for this society?
OK. Then let me ask you this: Are you willing to put your definition of the role of the press to a popular vote? Will you let your readers decide how useful you really are? Let the public will determine the extent of your rights and privileges?
Because if you won't, what do we do to protect ourselves against an institution grown so powerful and become so undisciplined that we are defenseless against your ability to affect our lives?
On your discretionary judgments hang reputations and careers, jail sentences and stock prices, Broadway shows and water rates. You are the mechanism of reward and punishment, the arbiter of right and wrong, the roving eye of daily judgment. You no longer shape public opinion, you have supplanted it. There are good men and women who will not stand for office, concerned that you will find their flaws or invent them. Many people who have dealt with you wish that they had not. You are capricious and unpredictable, you are fearsome and you are feared because there is never any way to know whether this time you will be fair and accurate or whether you will not. And there is virtually nothing that we can do about it.
So how do you think the referendum will go on Times v. Sullivan?
(In Times v. Sullivan, the Supreme Court held that under the First and 14th amendments to the Constitution, a public official can win a libel suit only if he can prove that a newspaper knew that the defamatory statement it printed about him was false or printed it with reckless disregard of its truth or falsity. This rule has since been extended to statements concerning "public figures" who are not public officials. Its effect is to make it very difficult for a public person to win a libel suit.)
Joint operating agreements?
(Joint operating agreements, which enjoy an exemption from the antitrust laws, allow a failing newspaper to share business and production facilities with a more successful competitor in the same city rather than cease publication.)
Reportorial privilege before the grand jury?
(Many journalists feel that the First Amendment allows reporters to refuse to testify before a grand jury on any of their newsgathering activities. Usually, only doctors, lawyers and clergymen have analogous privileges.)
Prior restraint of the publication of government secrets?
(The Supreme Court in its Pentagon Papers decision made it very difficult for the government to prevent the publication of secret government information.)
Premature disclosure of criminal investigations?
Publication of the names of juveniles and rape victims?
The right to make use of stolen documents?
To violate the law in pursuit of a story?
If you lost that vote -- if it were the law that damages would be awarded whenever false publication caused injury, if the anonymous source would speak only with the knowledge that his identity might one day be revealed, if it were left to the courts to weigh the societal value of publishing a fact against the societal cost of doing so -- would the people be worse off? There's a risk, certainly, but is a corrupt judge more dangerous than a reckless newspaper? What if a man does have a right to confront his accusers? What if it ought to be against the law to publish the plans for a hydrogen bomb?
If you lost that vote, would America be less free? Are we more free than Britain, France, the Scandinavian countries? Their press is less free -- they have already decided every question on your ballot and elected to restrict -- but their citizens are every bit as free as we are. The near-absolute freedom which you enjoy is not essential to a functioning democracy: Every society in the world has found it useful to exert a greater measure of control than we do.
They can do it, you know, the mob out there. It's not likely, thank the Lord, but there is nothing in our law to prevent public regulation of the American press if enough Americans get het up about it. I wouldn't endorse any constitutional conventions if I were you.
For the record, I happen to think that the First Amendment is far too important ever to be allowed to become a public question. But you are pushing awfully hard.
You seem to be oblivious of the fact that any expansion of your rights necessarily results in a constriction of mine. And you badly underestimate how naked we feel and how resentful we are now that it is clear that we have no remedy for inaccuracy.
Times v. Sullivan was a very bad case and, as a matter of heresy, let me say that I think it made very bad law. If public discussion cannot survive without libel, then it ought not to survive at all. As a matter of fairness, there is just nothing wrong with paying compensation to someone who can show falsity and damage. The burden on the press was not at all excessive; the "chilling effect" which the threat of libel action posed chilled exactly what it was supposed to.
Times v. Sullivan and the subsequent decisions which flowed from it swept away 500 years of libel law and, however damaging the new law has been to the poor souls who are wrongfully accused, it has been equally damaging to the press. It is simply too easy to get it wrong these days, to let the professional leaker find his way into print in the cloak of the usually reliable source. Under the burden of stare decisis (the legal principle of abiding by prior decisions and applying their principles in future cases) the court itself has been wrestling with Times v. Sullivan for almost 20 years and has made a hash of it so you still don't know where you stand.
And Times v. Sullivan was sufficiently incredible as a guidepost of public policy that it badly muddied the water as to just how sacrosanct our already free and already unfettered press ought to be. If it encouraged you to think too well of yourselves, and I think it did, the fault can at least be shared with the high court.
Times v. Sullivan was a gift but your reaction has not been a graceful one. Now you are forever inventing new rights and privileges for yourselves the assertion of which is so insolent that you apparently feel compelled -- as I certainly would -- to wrap them in the robes of some imaginary public duty and claim that you are acting on my behalf.
If I am indeed involved, then I would like you to do a little less for me. But of course I'm not. Your claims of privilege have nothing to do with any societal obligation because you have no societal obligation: that is the essence of what the First Amendment is all about.
Meantime, we have bred a whole generation of newspaper people who without apparent difficulty hold simultaneously in their heads the notions that they are armed with a mandate from the public and are accountable to no one save you. You ride whichever horse suits you in the situation until eventually you are persuaded that whatever you choose to do with your newspaper is somehow done in the service of the Republic. The press is full of itself these days, and frequently, it is simply full of it.
There is no such thing as the public's right to know. You made that up, taking care not to specify what it was that the public had a right to know. The public knows whatever you choose to tell it, no more, no less. If the public did have a right to know, it would then have something to say about what it is you choose to call news. At which point, bring on the First Amendment, Charlie, these guys are trying to tell me what to print.
Neither does it make much sense for you to tell me that you are, self-appointed, my watchdog. If I could get you to say who the senior administration official is who sounds so much like my secretary of state or if I could get you to squeal on the creep whose salary I pay who's running around leaking grand jury information, I would be somewhat more persuaded that you are watching what I want you to watch. But you aren't and you don't have to. The First Amendment says so.
Your rhetoric notwithstanding, there are a lot of things the First Amendment does not say. It does not say that the freedom to print means that we are obligated to make it easy for you to gather news, which is what your access argument comes to, and it sure as hell does not say that a journalist -- whoever and whatever that is -- does not have to talk to a grand jury. It is inconceivable to me that you do not see the violence that such a position, if maintained, would do to the most basic individual rights of our citizens. Its promulgation makes a mockery of the role you claim as defender of the democracy.
The publication of a newspaper is in itself a pretentious act: It should come with a daily apology. We are met instead with your firm insistence that you must be uncontrolled so that you can perform -- unbidden -- an essential public service which is so essential that the people for whom it is being performed must not be allowed to control it. That is wonderfully circular but not very endearing. Such thinking must inevitably lead to arrogance, and it has.
By a reasonable standard, the American daily print press turns in a performance that is simply competent. It is highly motivated, usually well intentioned, frequently accurate, occasionally useful. And every now and then, when it combines with the moral indignation for which it is notorious a correct perception of what it is that's really relevant to those it swears to serve, it is then, in those instances, a prime mover in the betterment of the society. I'd give it a B and vote to keep it.
But your continued claims to special privilege and your rigorous refusal to acknowledge that you do a difficult job imperfectly require that we measure your performance against a much higher standard. It is then clear that while you may be good and useful, you're not that good and useful. You're asking for more than you're entitled to.
Your shortcomings would be more tolerable if we had a sense that you were willing to listen but you do not suffer your critics gladly and surely not with humility.
There is, of course, the fact that you own the presses, which has raised a question in some minds about who will have the last word in any discussion of your virtues.
I think it is fair to say that you are disinclined to listen to any complainant who seems to have an ax to grind, a category which of course includes most of those who make news regularly and so are in a good postion to have an opinion.
It seems to be your notion that any criticism which springs from one who seeks the readers' favor is somehow polluted at the source. The dismissal of all politicians, bureaucrats, businessmen, judges and police chiefs seems to me somewhat preemptory, but I must admit that it does control the size of the crowd. That leaves only the little guys and it is an article of faith among you that the lay public simply cannot understand what news is, how a newspaper works and why newspapers sometimes do things which hurt people.
Your dismissal of your critics is not very subtle, but it is certainly efficient. The silence which results may be soothing but it is easily mistaken for approval. It is a personal opinion of mine that reporters really don't realize how inaccurate they are simply because they assume, as I must say I would, that a story is correct until someone complains. Left out of that equation are all of those who don't want to make waves, or who are afraid of offending you, or who don't know how, or who cool down and don'art bother, or who are brushed off by whoever answers the phone. Call your city desk anonymously some time and see if you like the feeling.
If reports of your rectitude are somewhat exaggerated, what about your utility? Are you really an essential part of our lives? I think you can go to the marketplace for an answer to that.
Were you in fact as useful as you sometimes claim to be, a grateful nation would reward you with circulation penetration beyond the security analysts' wildest dreams. The fact, of course, is that circulation has not kept pace with population growth in almost 40 years. We don't need you quite as much as you tell us we do.
You are editing newspapers for people as you think they ought to be, not as they are. They ought to be interested in the daily processes of the multiple governments which serve them, but they aren't. They ought to be following what's going on in the United Nations, but they don't. They ought to keep particular track of what their congressman is up to, but they won't.
They are largely apathetic about their roles as citizens, defeated by their apparent inability to make their governments respond to their wishes. You can reach them with news of war and Social Security and not much else.
You can justify your abundant and rather overstaffed coverage of America's political processes philosophically, but you cannot do it as a matter of reader appetite. It continues because you believe in it, because you've always done it that way and because it is, relatively speaking, cheap.
In every governmental building in the land, Monday through Friday, some tax-supported something or other is staging an event for you to cover with whoever happens to be available. It looks like news, it feels like news and nobody reads it. Creating detailed information which the reader can actually use is substantially more costly in both time and newsprint.
Event-centered news which the reader in fact acts upon is almost nonexistent: If an event has appeal, its appeal is that of entertainment. Man bites dog is an entertaining event; so is dog bites man if either creature is somehow special. Too much news offers neither entertainment nor opportunity.
It is awkward and very nearly cynical for me to say out loud that news isn't news unless it's entertaining but that, I think, is a fact of the marketplace. One interesting thing about television is that it takes its customer exactly as he is. The TV people don't like it either, but they live with it and they reach a lot more people than we do.
My time is gone. It's not my place to give advice but since that didn't bother me 20 minutes ago, I guess it won't inhibit me now.
Lower your voices. Be useful. I'll respect your rights if you'll respect mine.