Writing in 1833, Justice Joseph Story, one of the greatest jurists of the early republic, warned against a dangerously exaggerated conception of the freedom of the press. “There is,” Story observed in his Commentaries on the Constitution of the United States, “a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such, that, like the king of England, it could do no wrong, and was free from every inquiry, and afforded a sanctuary for every abuse; that, in short, it implied a despotic sovereignty to do every sort of wrong, without the slightest accountability to private or public justice.” This idea, Story held, “is too extravagant to be held by any sound constitutional lawyer.”
Story’s warning is as relevant today as it was when it was written almost 200 years ago. Much too often, the contemporary press is not content with the equal constitutional rights shared by all Americans. Instead, its members frequently assert special privileges that are not based on the Constitution. In some cases, they even claim a prerogative to do things that would land any ordinary American in serious legal trouble. This problem is illustrated by the recent remarks of A.G. Sulzberger, the publisher of the New York Times, at an event sponsored by Yale Law School.
In his speech, Sulzberger presents himself, his newspaper, and its supporters as defenders of the First Amendment and the freedom of the press. This great freedom, he rather predictably suggests, is under assault by President Trump. Yet many of Sulzberger’s grievances are actually based on asserting special privileges for the press that are not guaranteed by the First Amendment.
Join the conversation as a VIP Member