Getting around the First Amendment

The First Amendment to the Constitution guaranteed the press practically absolute power to do its job in the brand-new United States of America.

Its job? Watchdog. To the authors of the First Amendment, and the Constitution, that job may have been the most important work to be done, in a society that wished to be free and democratic. That conviction is apparent in the amendment’s language. It states, in part, “Congress shall make no law abridging the freedom of the press.”

The key word is “abridging,” which means to put limits on. It means the authors understood that freedom of the press was a fundamental reality in the new nation, a reality that existed before the Declaration of Independence, and before the Constitution. Nowhere in the Constitution is there a reference to freedom of the press. The Constitution did not create freedom of the press in the United States, because the authors understood that freedom of the press predated the Constitution.

The watchdog was necessary to expose power where it was mutating into corruption. The authors knew how fragile men were in the guardianship of power; they built what balances they could into the Constitutional structure of the three governmental branches. But it was impossible to anticipate every mutation that power might take into corruption. That threat needed an independent watchdog.

Since the 18th century, then, the press has enjoyed the First Amendment freedom to do its job in behalf of freedom. Here is John Adams: “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” Thus was the press, via the First Amendment, given free access to all men.

Now the press is being discounted by the Bush administration. Here is George W. Bush, speaking to a reporter: “You’re making a powerful assumption, young man. You’re assuming that you represent the public. I don’t accept that.”

Behind that amazing statement is a strategy: “There’s nothing we can do about the First Amendment, so we have to go around it.” The strategy ultimately won’t work, because if the battle ever comes down to a referendum about the free press, the alternatives will suddenly become very clear. It is just such a nasty feeling, that such a strategy has been taken, like pulling up floorboards and finding swarms of termites.