Uninhibited, Robust, and Wide-Open: A Free Press for a New Century.

AuthorArmijo, Enrique
PositionBook review
  1. "PROVIDING THE WORLD" A FREE AND INDEPENDENT PRESS. II. THE "FREE PRESS" AND INTERNATIONAL LAW III. EXPORTING THE AGNOSTIC FIRST AMENDMENT IV. CONCLUSION Scholars and practitioners in communications law and the First Amendment will recognize Lee Bollinger's status as our most preeminent and thoughtful writer on press freedom. His latest effort, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century, (1) is a slim, elegant, and forceful piece of advocacy, taking its title from the most celebrated line in First Amendment jurisprudence, (2) and perhaps in all of

    constitutional law. (3) In the book, Bollinger turns his focus to international law, and on how "[t]o project a U.S. free press system onto the world," (4) so as "to create a global system of a free press for the emerging global society." (5) In broad strokes, Bollinger offers a compelling argument for the need for universal flee press principles in the era of globalization, as well as the means by which to achieve them. But in his argument's particulars, Bollinger presents an incomplete analysis and an overriding irony. The incompleteness is in his failure to discuss a number of areas in which other countries' conceptions of the press are irreconcilable with our own, or how to resolve these differences. And the irony is that many of the measures Bollinger proposes that other countries take in adopting First Amendment values would themselves likely not survive First Amendment scrutiny here in the United States.

    Part I of this Review will briefly describe Bollinger's project, as well as his discussion of the First Amendment values that animate his vision of a global free press. Part II will raise some implementation problems associated with exporting the United States' free press system that Bollinger fails to give their needed airing. Part III will discuss how comfortably Bollinger's project rests with a vision of the First Amendment most recently articulated by the United States Supreme Court in the 2010 decision Citizens United v. Federal Election Commission (6)--a vision that attaches constitutional importance to speech in its own right rather than to the values speech might serve, and that is agnostic as to a speaker's identity or the content of the speaker's message. (7) Part IV concludes with a real-world example that demonstrates some of the practical difficulties identified in this Review.

  2. "PROVIDING THE WORLD" A FREE AND INDEPENDENT PRESS

    Bollinger begins Uninhibited, Robust, and Wide-Open by establishing three "pillars" of First Amendment jurisprudence--press protection from censorship, no special press rights of access, and press regulation--that shape and support the freedoms the press enjoys in the United States today. (8) As to protection from censorship, Bollinger describes how the Supreme Court's initial First Amendment cases addressed, at first "inauspicious[ly]" but then correctly, the problem of speech that advocated illegal action, caused reputational harm, invaded privacy, potentially prejudiced jurors, or divulged state secrets. (9) These cases collectively stand for the proposition that the First Amendment, "underscored by a passion for a largely unbounded national forum," protects a broad range of speech, including speech by the institutional press. (10) The second pillar, in Bollinger's view, represents a more lamentable line of cases--those that deny the press's newsgathering activity any special constitutional protection. (11) Accordingly, for example, there is no First Amendment right protecting the disclosure of a journalist's confidential source or mandating access to a crime scene. (12) Finally, the third pillar, "[r]egulating the [p]ress to [i]mprove the [p]ress," (13) affirms the authority of the FCC to impose limits on broadcaster speech and media ownership, protects public broadcasters' speech rights despite their receipt of government subsidies, and declines to qualify the First Amendment rights of Internet speakers. (14)

    Turning to the rest of the world, Bollinger next argues that as globalization speeds on and the American press enters the global arena, it will be subject to a number of legal regimes that are well outside of the three pillars' protection. Lese majeste laws that criminalize insults of royal family members and heads of state, overprotective or nonexistent access to information laws, website-censoring authoritarian regimes, and "bureaucratic licensing rules" that bar or frustrate foreign correspondents and media outlets all inhibit the free flow of information upon which we have become increasingly dependent in the Internet era. (15) Bollinger therefore proposes the need for "a central, overriding system of constitutional protections" "to provide a free and independent press to a world in desperate need of such an institution...." (16)

    To implement this system, Bollinger calls on the U.S. Supreme Court to lead in the formation of a global free press by "draw[ing] on the language and concepts in current international conventions and laws," (17) such as freedom-of-expression-affirming provisions in the Universal Declaration of Human Rights and similar agreements. (18) Doing so would establish freedom of expression not as a legal right granted by sovereignty, but rather a natural "right of individual citizens throughout the world." (19) He also calls for a number of other steps the United States should take in "nurtur[ing] a press focused on broader global issues," (20) such as using public funds to develop a "nationally sponsored media" similar to the BBC in its focus on international reporting. (21) Finally, he explores the potential use of contractual relationships between nations, as manifested in international trade and investment law, to enforce global norms for a free press. (22) By taking these actions, Bollinger claims, the United States can lead in developing increased protections for journalists and speakers worldwide, thus setting off a rising tide of freedom of expression that will lift all boats.

  3. THE "FREE PRESS" AND INTERNATIONAL LAW

    Bollinger acknowledges that there are a number of implementation problems associated with developing an uninhibited global marketplace of ideas. Most of these problems stem from the disparate levels of protection afforded to the press for its speech here in the United States and abroad. For example, Bollinger mentions the problem of libel tourism, where defamation plaintiffs seek redress against authors and journalists in jurisdictions such as England, where the burden is on the writer to show truth rather than on the plaintiff to show falsity, as is the case in the United States. (23) For obvious reasons, Internet publishing has become a boon to libel plaintiffs. Fortunately, however, domestic courts have refused to apply the law of these countries or enforce their judgments, finding them inconsistent with the First Amendment. In Bachchan v. India Abroad Publications Inc., for example, a New York state trial court held that England's lack of a First Amendment equivalent meant that "It]he protection to free speech and the press embodied in that amendment would be seriously jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded the press by the U.S. Constitution." (24) But Britain has shown some interest in statutory fixes to its libel regime that would raise plaintiffs' burden of proof and create a speech-protective qualified public interest privilege. (25) Additionally, over the past ten years, many countries have decriminalized libel, or at least removed the prospect of imprisonment for publication crimes. (26) So, in this sense, the United States' more protective model of speech rights is already taking hold, or at least being considered, in other parts of the world.

    But there are other areas where the incompatibility between other countries' conceptions of a free press and our own is far more intractable, in part because the same justifications--or "pillars"--lead other countries to draw opposite conclusions than those reached here in the United States. For example, the U.S. Supreme Court has found rights of reply in the print context to be facially incompatible with the First Amendment. In Miami Herald v. Tornillo, Chief Justice Burger, writing for a unanimous Court, noted that "implementation of a remedy such as an enforceable fight of access"--particularly because it required "governmental coercion" for its implementation--"at once brings about a confrontation with the express provisions of the First Amendment" and...

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