Championing the Newspaper Industry

SNPA / Inland Merger: Looking ahead to preserving and promoting First Amendment values

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As we celebrate joining together SNPA and Inland, it is worth at least a moment to honor the first principles of the newspaper industry that gave rise to both groups.  And those, without a doubt, are freedom of the press and the parallel right to know and to distribute news.

Honoring those principles requires some reflection on the industry's singular role in building America's First Amendment foundation. And it is safe to say that SNPA's and Inland's member newspapers can fairly take credit for shaping the free speech and free press tradition of the republic like no other industry and, for that matter, like no other country on earth. 

Even before the American Revolution, newspapers in this country, whose industry descendants are with us today, were in the middle of challenging restrictions and regulations of the press. We hardly need to look beyond the fabled criminal libel trial of New York City newspaper publisher John Peter Zenger in 1735 – and the months Zenger spent in jail awaiting trial – over charges that Zenger dared to call out the corrupt colonial governor of New York. In securing an acquittal on the criminal sedition and defamation charge against him – the simple act of publishing his newspaper – Zenger succeeded in establishing a new legal rule that speaking the truth about government misconduct is an absolute defense to a criminal charge or civil lawsuit aimed at the publication of news and commentary.   

We take Zenger's "truth is an absolute defense" principle largely for granted today. Yet even arguing for his acquittal in those days meant casting aside 300 years of British common law, courage by a newspaper publisher that set the stage for the transformation of free press rights in America over the nearly 300 years that have followed Zenger's case.  Yet for all of that, the most significant part of that transformation of free press rights in America has occurred on the watch of SNPA and Inland members over the last 55 years.

The constitutionalization of a free press

On the 100th anniversary of SNPA in 2003, I attempted to inventory the major legal victories of member newspapers that created the First Amendment framework that first saved and later drove our newsrooms to new heights.  

Foremost among those was the fabled, 1964 New York Times v. Sullivan public official libel case that produced the initial $500,000 jury verdict in a Birmingham, Ala., state court. At the time of the NYT's appeal to the U.S. Supreme Court in that case, the Times ownership was facing 50 other verdicts in state courts across the South over coverage of the civil rights movement. The verdicts threatened to put the company under. 

And thanks again to a newspaper publisher's courage to take the case to the nation's highest court, the U.S. Supreme Court responded with a legal rule that stopped public officials from recovering limitless libel damages against newspaper publishers without proof that an alleged inaccuracy was published with knowledge of its falsity. The wave of verdicts tapered off, and the industry survived and even prospered on covering government activity and official misconduct.

The Sullivan case was followed by a challenge in the early 70s by the Richmond Times-Dispatch to a court order closing court proceedings to the public without a hearing or an order detailing reasons for closing out the public and press. Again, a courageous and committed newspaper operation, former SNPA President Stewart Bryan's hometown paper, led the charge to overturn the lower court rulings and establish a First Amendment-based requirement that closing courtrooms or court records can only occur if there is proof by the government of a compelling reason to deny access to the public and press at a hearing open to the public. Another First Amendment brick in the wall built by the industry.

And who can forget the 1971 Pentagon Papers case? Unheard of courage by a newspaper publisher was required to establish for all time in this country – unlike the tradition that operates in the rest of the West – the legal rule that the government can't stop the press.

The right to know is born

At about the same time as these courtroom battles were being waged by newspaper publishers, the U.S. Supreme Court declined to extend the federal constitutional (First Amendment) right to access court records to all government records, whether or not they related to official court proceedings. That left a universe of public records in the hands of federal, state and local governments and no legal obligation on their part to make the records available for public inspection.  

Enter state legislatures across the country. Fueled by newspaper editorial voices, state lawmakers took action to plug the gap. One by one, every state passed a public records law and an open meetings law. Some are stronger than others – a few states even passed amendments enshrining the right to see government records and attend government meetings in their state constitutions. But as a result of newspaper publisher pressure, the public and press now have some form of a statutory right to know in every state.

Even more First Amendment foundation work was undertaken by newspaper publishers whose distribution was restricted and even banned (on sidewalks and in airports in some places). In the course of challenging those restrictions in court, the First Amendment's right to distribute news – including free circulation of regular and TMC editions – was spawned. And it remains an important part of newspaper publishing operations to this day.

The principle behind the industry's battles to advance First Amendment interests has been constant. Publishing free of government restraint is central to our democracy. And press freedom in America can't exist without the right to access government records and distribute news and information without government restraint. It is not too much to say that we all owe a lot to those industry pioneers.

So while we remember our great common First Amendment heritage, the story doesn't end there. A renewed commitment from SNPA and Inland publishers to the enormous task of preserving the free press gains over the last half century and promoting First Amendment values going forward is needed now more than ever.

John Bussian is legislative and First Amendment counsel for the North Carolina Press Association and has coordinated a number of friend-of-the-court briefs over the years on behalf of SNPA.

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