Durbin, Tocqueville, and Freedom of the Press

Yesterday, Glenn Reynolds linked some comments by Senator Dick Durbin, who said he favors a “media shield law”…but isn’t sure if such a law should protect people who are bloggers and/or tweeters, rather than being employees of Associated Press, Fox News, etc.

“Are these people journalists and entitled to constitutional protection?, asked Durbin. “We need to ask 21st century questions about a provision that was written over 200 years ago.”

As it happened, last night I was reading Alexis de Tocqueville, who (as usual) has some relevant things to say:

In France the press combines a twofold centralization; almost all its power is centered in the same spot and, so to speak, in the same hands, for its organs are far from numerous. The influence upon a skeptical nation of a public press thus constituted must be almost unbounded. It is an enemy with whom a government may sign an occasional truce, but which it is difficult to resist for any length of time.

Neither of these kinds of centralization exists in America. The United States has no metropolis; the intelligence and the power of the people are disseminated through all the parts of this vast country, and instead of radiating from a common point they cross each other in every direction; the Americans have nowhere established any central direction of opinion, any more than of the conduct of affairs. This difference arises from local circumstances and not from human power; but it is owing to the laws of the Union that there are no licenses to be granted to printers, no securities demanded from editors, as in France, and no stamp duty, as in France and England. The consequence is that nothing is easier than to set up a newspaper, as a small number of subscribers suffices to defray the expenses.

Hence the number of periodical and semi-periodical publications in the United States is almost incredibly large. The most enlightened Americans attribute the little influence of the press to this excessive dissemination of its power; and it is an axiom of political science in that country that the only way to neutralize the effect of the public journals is to multiply their number…The governments of Europe seem to treat the press with the courtesy which the knights of old showed to their opponents; having found from their own experience that centralization is a powerful weapon, they have furnished their enemies with it in order doubtless to have more glory for overcoming them.

In America there is scarcely a hamlet that has not its newspaper. It may readily be imagined that neither discipline nor unity of action can be established among so many combatants, and each one consequently fights under his own standard. All the political journals of the United States are, indeed, arrayed on the side of the administration or against it; but they attack and defend it in a thousand different ways. 

Durbin referred to the First Amendment as “a provision that was written over 200 years ago,” apparently implying that the passage of time makes it less relevant today. If he were better-educated and more intelligent, he would understand that the press environment of the Revolutionary era and the first half of the 1800s, marked by decentralization and low start-up costs, is more similar to today’s Internet-driven media environment–marked by the same factors–than either is to the era that was marked by a few huge quasi-monopolistic media organizations.

When the Founders referred to “freedom of the press,” what exactly did they mean? I think there is a very strong case to be made (see detailed legal analysis by Eugene Volokh) that they meant freedom of the printing press (and, implicitly, of its technological successors) rather than offering a grant of special privilege to entities within a particular industry. Indeed, what would a grant of special protection to a “press” industry have even meant in an age when any citizen could buy a simple printing press and immediately begin publishing pamphlets or newspapers, without any need for huge capital investments, AP wire feeds, dozens of employees, etc?

I agree with Glenn Reynolds that “We need protections for journalism, not journalists.” The idea of special civil-liberties protections only for a particular industry, with membership in that industry inevitably to be certified by the powers-that-be, is highly dangerous, and takes us back to an environment of  licenses to be granted to printers, securities demanded from editors, as in France, and stamp duty, as in France and England.

I notice that the people who want to use “technology” as an excuse for the erosion of constitutional protections are generally people whose ignorance of technology is exceeded only by their ignorance of history.


12 thoughts on “Durbin, Tocqueville, and Freedom of the Press”

  1. I have often wondered what the founders would think of the current situation – a highly concentrated source of the “press”, largely staffed by people all cranked out by a few “journalism” schools, whose primary Raison d’être is protecting political powers of their own beliefs.

    It is no wonder that the political powers thus protected view the new technology with fear and mistrust.

    While the costs of distribution have rendered setting up ones own printing press very difficult these days (not to mention its audience is no longer a small village) perhaps the internet is again allowing what the Founders envisioned.

  2. Freedom of the press as the Founders meant it would be the equivalent to freedom of the mouse, keyboard, and Internet access today. There was no “press” as an industry. The press became an industry with steam driven printing presses, closer to the time of Lincoln than to the Founding.

    Durbin may know better, but he doesn’t care. He is interested in helping his friends and hurting his enemies, like every hack from Illinois, including the hack in chief.

  3. The founders would be astounded by the multiplicity of media and viewpoints represented in the country. Consider the ratio of people to printing presses. I have no idea what it was in the Federalist period, but it had to have been in the thousands. Today we are approaching 1 when you consider that I am typing on one now. The low point, I would suggest was 1962, before the Xerox copier or computer composition was wide spread. Television had begun its decimation of printed news, and only three networks marching in lockstep with the NYT and WAPO provided citizens with a homogenous New Deal pablum. Compare the information desert many of us grew up in to the polyphony of politics we can sample from today. Things are getting better, and none too soon.

  4. The centralization of print media in the form of newspapers was driven by a confluence of 3 technologies:

    1) Large, fast steam-driven rotary presses…later electrically-driven, but still expensive

    2) Typesetting machines such as the Linotype…yes, you could have a newspaper with hand-set type, but there were considerable efficiencies if you had enough scale to buy a Linotype or equivalent.

    3) Telegraphy…fast, but expensive on a per-word basis and limited in bandwidth; required either a skilled operator for Morse telegraphy or, later, an expensive teleprinter machine.

    …also, there was a structural factor that further pushed centralization: local physical distribution becomes far more economical if you have 80% of the people in the neighborhood as customers than if you have only 10%.

    In the case of radio and television, the limited availability of spectrum was inherently centralizing (although it seems the FCC helped the process along by suppressing local low-power stations in favor of wide-area high power stations); also, the costs of network distribution–especially for television–mitigated in favor of dominance by huge organizations.

  5. “Dick” Durbin is a senior Democrat, and a member in good standing of the bi-partisan “Governing Class”. The First Amendment is, of course, part of the Bill of Rights.

    I challenge readers to name any one Article in the Bill of Rights that the Governing Class does not see as obsolete and in desperate need of re-writing or re-interpretation to the benefit of the Governing Class.

    Subotai Bahadur

  6. “If he were better-educated and more intelligent…”

    Well, that’s the problem in a nutshell, isn’t it?

    The man has spent his whole career earning his name, and shows no signs of changing course.

  7. Durban. Obama. Rahm. Jarret.

    Tyranny is this the best you can conjure?

    Oh they are by all standards but the insane 20th century.

    But that’s all?

  8. Michael K…”There was a reason why the Soviet Union banned private ownership and strictly controlled access to copiers and Xerox machines.”

    In the 1982 movie about the White Rose anti-Nazi resistance group, the members of the group are shown having great difficulty the acquiring paper and stamps they need to send out their flyers, as the purchase of such items in any quantity raises suspicions which are relayed to The Authorities.

  9. The actual situation: we have weaklings who wish for and reach for tyranny they cannot grasp, but the feeble attempts have alarmed dangerous people into potential belligerence – those being people, police, military – warily watching each other while staring in increased horror at the spectacle of our government.

    He’s not Hitler. He’s Childeric. His core supporters are Childerish brats who’ve stumbled into power.

    Lacking of course any real experience of getting it, being groomed for it, a sense of duty and honor, or any model to wear power gracefully they are taking the model of the Reality TV show.

    Higher end ones take caricatures of aristocracy as model. TITANTIC is not how 1st class acted, it’s Hollywood. But we’ve had no Ruling Class trained for Rule since the Boomers spurned all the lessons of their parents. They realized what they threw away too late, and have never been able to find it. So we get Clinton, Rubin, Hillary, and now this Farce. The Clinton’s are crime, this Mikado farce…but they have done us the service of awakening the people.

  10. }}} If he were better-educated and more intelligent, he would …

    … not be a Senator.

    Isn’t that how you meant to end that supposition?


    Don’t forget Durbin is the imbecile who supplied the lie to Boxer that “We already limit free speech. Why not guns?”

    The lie, in case it slipped past you (I’ve seen literally NO commentary from any other source):

    We don’t limit or register printer, megaphone, or camera ownership to prevent libel, slander, or child porn.

    We punish the irresponsible use of rights, we don’t limit access to the tools which might be used for the exercise of those rights.

    And we already do this with guns, too — 10-20-30 laws, for an obvious example.

  11. “Durbin referred to the First Amendment as “a provision that was written over 200 years ago,” apparently implying that the passage of time makes it less relevant today.”

    He’s right. Now that we are all [national] Socialists, the provisions of racist-sexist-classist homophobic Founding Fathers (a sexist term) etc. etc.

    It’s important to understand the thought (and I use that term loosely) of Durbin, Reid, Pelosi, Obama, Mao, Chavez, Castro, et. al.

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