1. F. Little, Thomas M. Patterson , 11 Rocky Mountain Law Review 149 (1939) is the best piece available on Patterson. L. Hafen, COLARADO 264-65 (Denver: Peerless Publishing, 1933); L. Dorsett, THE QUEEN CITY 68, 75, 79, 130-42 (Boulder: Pruett Publishing, 1977); R. DeLorme, Turn-of-the-Century Denver: An Invitation to Reform , 45 Colorado Magazine 1 (1968).

2. DeLorme, Turn-of-the-Century Denver at 9; R. Perkin, The First Hundred Years: AN INFORMAL HISTORY OF DENVER AND THE ROCKY MOUNTAIN NEWS 407-10 (Garden City, N.Y.: Doubleday, 1959).

3. The secondary sources just say that Adams apparently won. In Patterson's answer to the show—cause order, he stated that the margin was 9000 votes according to the "official returns." People ex rel. Attorney General v. News-Times Publishing Co ., 35 Colo. 253, 284-90 (1906). Although not so detailed, the secondary literature agrees. P. Fritz, Colorado 377 (New York: Prentice-Hall, 1941); Hafen, Colorado at 267-68. Adams was not the usual "two-time former" governor. He had served single terms in 1887 and 1897.

4. Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803).

5. News-Times Publishing , 35 Colo. at 303; Fritz, COLARADO at 377; Hafen, COLARADO at 267-68. I realize that the Pinckney example is not perfect because the 1800 election precipitated the Twelfth Amendment; thus neither Pinckney nor Aaron Burr was in the electoral college officially as a vice-presidential candidate.

6. People v. Johnson , 34 Colo. 143 (1905).

7. Denver Times , June 24, 1905, reprinted in News-Times Publishing , 35 Colo. at 256-57.

8. Rocky Mountain News , June 25, 1905, reprinted in 35 Colo. at 257-58. break

9. Denver Times , June 26, 1905, reprinted in 35 Colo. at 259-63.

10. Rocky Mountain News , June 30, 1905, reprinted in 35 Colo. at 271-75.

11. Justice Steele's solo dissent reproduced in full Patterson's statement to the court why he should not be held in contempt ( News-Times Publishing , 35 Colo. at 395-99). Steele's dissent ends with an apt comment on the majority's ruling truth irrelevant: "In the very nature of things, those who before believed the charges to be true are now confirmed in their belief, and those who did not believe them, now have their confidence in this court shaken solely because of the action of the court in refusing the respondent a hearing, and denying him the right to offer proof in support of the charges" (id. at 461).

12. COLORADO CONSTITUTION art. II, § 10 (emphasis added).

13. News-Times Publishing , 35 Colo. at 361-62, 392-94, 356.

14. Patterson v. Colorado , 205 U.S. 454, 462 (1907). Justice Harlan dissented on the merits; Justice Brewer dissented without indicating a view on the First Amendment issue. (Whether the First Amendment applied to the states will be discussed in Chapter 2.) W. Blackstone, 4 COMMENTARIES ON THE LAWS OF ENGLAND 151 (Oxford: Clarendon Press, 1769).

15. J. Alexander, A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN PETER ZENGER 8 (S. Katz, ed.) (Cambridge, Mass.: Belknap Press, 1963). This is the indispensable source for the Zenger case: Alexander's "Brief Narrative," written shortly after the trial, is republished along with a superb introductory essay by Stanley N. Katz and three useful appendices. For the facts leading up to the trial I have relied exclusively on Katz's excellent introduction. For the trial itself I relied on Alexander's narrative, which I have interpreted as a lawyer taking apart another's case.

16. Katz, Introduction to Alexander, BRIEF NARRATIVE at 2.

17. Id. at 3-4, 6-7.

18. Id. at 9.

19. Id. at 10-11, 13.

20. Id. at 17.

21. Id. at 17-19; Alexander, BRIEF NARRATIVE at 49.

22. Alexander, BRIEF NARRATIVE at 49.

23. Id. at 62.

24. Id. at 51-55.

25. Id. at 56; Katz, Introduction at 21-22; L. Wright, Milestones and Concepts of the Lawyer-Citizen , 41 American Bar Association Journal 797 (1955).

26. Alexander, BRIEF NARRATIVE at 65, 66.

27. Id. at 62, 68, 69. break

28. Id. at 69.

29. Id. at 74.

30. Id. at 75 (emphasis omitted).

31. Id. at 84, 81.

32. Id. at 96, 98, 99.

33. Id. at 101.

34. Katz, Introduction at 29-30.

35. Consider the Espionage Act trial of Jacob Abrams that ultimately led to Justice Holmes's eloquent dissent in Abrams v. United States , 250 U.S. 616 (1919). Abrams, a Russian immigrant and alien, was on the stand and being questioned by the trial judge, Henry DeLamar Clayton, Jr., whose younger brother had been killed by a German bomb in France just five months earlier. Abrams, who spoke with a soft voice and distinct Yiddish accent, was attempting to justify his anarchist beliefs: "This government was built on a revolution. . . . When our forefathers of the American revolution—" Clayton interrupted instantly, "Your what?" "My forefathers," responded Abrams. Clayton: "Do you mean to refer to the fathers of this nation as your forefathers?" R. Polenberg, Fighting Faiths 95-102, 118-25 (New York: Viking Penguin, 1987). On the day of sentencing, Clayton delivered a two-hour tirade at the defendants and then sentenced Abrams to twenty years.

36. D. Teeter, A Legacy of Expression: Philadelphia Newspapers and Congress During the War for Independence 13 (Ph.D. dissertation, School of Journalism, University of Wisconsin, Madison, 1966); William Cushing to John Adams, February 18, 1789, quoted in L. Levy, The Emergence of a Free Press 199 (New York: Oxford University Press, 1985).

1. "Official Notice of Ratification" (March 1, 1792), reproduced in B. Schwartz, 2 THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 1203 (New York: Chelsea House, 1971).

2. This is the position taken by Leonard Levy's influential books: Legacy Of Suppression (New York: Oxford University Press, 1960), enlarged and republished as EMERGENCE OF A FREE PRESS (New York: Oxford University Press, 1985). My own research, as well as that of others relied upon in this chapter, was in large measure stimulated by Levy's seminal LEGACY. Although I, like others, dispute Levy's legal conclusions, his superb research is indispensable to an understanding of the colonial meaning of freedom of the press.

3. Kenneth Bowling entitled his dissertation A Tub to the Whale: The continue

Adoption of the Federal Bill of Rights (unpublished dissertation, University of Wisconsin, Madison, 1968), using Jonathan Swift's story to explain the Federalists' expedient conversion to the Bill of Rights. "Sea-men have a Custom when they meet a Whale , to fling him out an empty Tub , by way of Amusement, to divert him from laying violent Hands upon the Ship." A Tale Of a Tub, in THE WRITINGS OF JONATHAN SWIFT 284 (R. Greenberg, ed.) (New York: Norton, 1973). R. Buel, Securing The Revolution 246 (Ithaca, N.Y.: Cornell University Press, 1972).

4. The First Amendment was, in fact, the third submitted to the states. The first two, as submitted, were dear to elected officials' hearts: one dealt with population for congressional districts, the other with congressional compensation. Furthermore, as David Anderson notes, "freedom of the press or speech was never first on anyone's list. It was the last right mentioned in the Address to the Inhabitants of Quebec. It was article twelve of the Pennsylvania Declaration of Rights, the sixteenth of twenty amendments proposed by the Virginia Ratifying Convention, and the second clause of the fourth proposition in Madison's proposed bill of rights." The Origins of the Press Clause , 30 UCLA Law Review 455, 482-83 (1983) (footnotes omitted).

5. G. Wood, THE CREATION OF THE AMERICAN REPUBLIC 132 (Chapel Hill: University of North Carolina Press, 1969).

6. Id. at 281-92; F. McDonald, NOVUS ORDO SECLORUM 58-59 (Lawrence: University of Kansas Press, 1985).

7. Wood, CREATION OF THE AMERICAN REPUBLIC at 285; Anderson, Origins of the Press Clause at 464; D. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History , 37 Stanford Law Review 795, 828 (1985). A shorter version of Rabban's article, stating his conclusions without the focus on Levy, appears as The Original Meaning of the Free Speech Clause of the First Amendment , in R. Simmons, ed., 6  THE UNITED STATES CONSTITUTION at 36 (Manchester: Manchester University Press, 1989). Only Connecticut and Rhode Island did not join the constitution drafting; they continued under their colonial charters.

8. F. Hall, The Common Law: An Account of its Reception in the United States , 4 Vanderbilt Law Review 791, 798-800 (1951); M. Horowitz, THE  TRANSFORMATION OF AMERICAN LAW 4 (Cambridge, Mass.: Harvard University Press, 1977); Levy, EMERGENCE OF A FREE PRESS at 183.

9. Quoted in Hall, Common Law at 798, 799nn.

10. J. Trenchard and T. Gordon, I CATO'S LETTERS; OR, ESSAYS ON LIBERTY, CIVIL AND RELIGIOUS, AND OTHER IMPORTANT SUBJECTS 100 (New York: Da Capo Press, 1971); Schwartz, 1 BILL OF RIGHTS at 235, 342. break

11. Id. at 266, 277. Both of the unique Pennsylvania provisions were also adopted by Vermont when it formed its constitution a year later. Pennsylvania's radical constitution was replaced in 1790. R. Brunhouse, THE COUNTER-REVOLUTION IN PRNNSYLVANIA (Harrisburg: Pennsylvania Historical Society, 1942).

12. "Narrow conservatism" is Levy's characterization of Blackstone in EMERGENCE OF A FREE PRESS at xv. From the point of view of the Radical Whigs this is, if anything, an understatement.

13. Rabban, Ahistorical Historian at 828; Rabban, free Speech Clause at 40.

14. Rabban, Free Speech Clause at 39-43.

15. D. Teeter, A Legacy of Expression: Philadelphia Newspapers and Congress During the War for Independence 13 (Ph.D. dissertation, School of Journalism, University of Wisconsin, Madison, 1966); M. Yodelis, WHO PAID THE PIPER? PUBLISHI8NG ECONOMICS IN BOSTON, 1763-75, Journalism Monographs no. 38, at 42 (Lexington: University of Kentucky Press, 1975).

16. D. Teeter, Press Freedom and Public Printing: Pennsylvania, I775-83 , 45 Journalism Quarterly 445, 446 (1968); N. Rosenberg, PROTECTING THE BEST MEN 45 (Chapel Hill: University of North Carolina Press, 1986).

17. Teeter, Press Freedom and Public Printing at 446, 447. When the British were approaching Philadelphia in 1777, Congress took steps to protect printers and their equipment. "It was feared that all the printers would flee, interrupting the state's—and Congress'—main method of financing the war: printing paper money." Teeter, Legacy of Expression at 95.

18. M. Jensen, Book Review, 75 Harvard Law Review 456, 457 (1961) (reviewing Levy, LEGACY OF SUPPRESSION); Levy, EMERGENCE OF A FREE PRESS at x; R. Buel, Freedom of the Press in Revolutionary America , in B. Bailyn and J. Hench, eds., THE PRESS AND THE AMERICAN REVOLUTION 59, 81 (Boston: Northeastern University Press, 1981).

19. Teeter, Press Freedom and Public Printing; Legacy of Expression.

20. Teeter, Legacy of Expression at 21; D. Teeter, The Printer and the Chief justice: Seditious Libel in 1782-83 , 45 Journalism Quarterly 235, 236 (1968); J. Wheeler, THE MARYLAND PRESS 19-36 (Baltimore: Maryland Historical Society, 1938).

21. New York Times v. United States , 403 U.S. 713 (1971); Independent Gazetteer , June 22, 1782, quoted in Teeter, Legacy of Expression at 207.

22. Teeter, Legacy of Expression at 120; Press Freedom and Public Printing at 449.

23. Teeter, Legacy of Expression at 241, 244. break

24. Independent Gazetteer , June 23, 1783, quoted in Teeter, Legacy of Expression at 250.

25. Teeter, Legacy of Expression at 127; Independent Gazetteer , April 21, 1781, quoted in D. Teeter, Decent Animadversions: Notes Toward a History of Free Press Theory , in D. Bond and W. McLead, eds., NEWSLETTERS TO NEWSPAPERS: EIGHTEENTH-CENTURY JOURNALISM 237, 240 (Morgantown: School of Journalism, West Virginia University, 1977); Freeman's Journal , May 23, 1781, quoted in Teeter, Decent Animadversions at 240.

26. Pennsylvania Packet , July 3, 1779, quoted in Teeter, Press Freedom and Public Printing at 450.

27. Teeter, Press Freedom and Public Printing at 450.

28. Teeter, Legacy of Expression at 97, 107-09.

29. Pennsylvania Evening Post , June 25, 1778, quoted in Teeter, Legacy of Expression at 111.

30. Teeter, Legacy of Expression at 144-45; D. Teeter, From Revisionism to Orthodoxy , 13 Reviews in American History 518, 521-22 (1985).

31. Teeter, Legacy of Expression at 149.

32. A. Schlesinger, PRELUDE TO INDEPENDENCE 189 (New York: Alfred A. Knopf, 1958): "Liberty of speech belonged solely to those who spoke the speech of liberty." J. Kettner, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978) at 183, notes that execution of Tories for treason was rare during the war. "The death penalty seems to have been carried out only when there was clear evidence of active disloyalty; even then the purpose was as much to warn other potential traitors as to satisfy a patriotic bloodlust."

33. Teeter, Legacy of Expression at 121.

34. Independent Gazetteer , September 28, 1782, quoted in Teeter, The Printer and the Chief Justice at 237.

35. Independent Gazetteer , December 17, 1782; Oswald to Lamb, November 26, 1782, both quoted in Teeter, The Printer and the Chief Justice at 238, 239.

36. Independent Gazetteer , December 31, 1782, and January 4, 1783, quoted in Teeter, The Printer and the Chief Justice at 240, 241.

37. Quoted in Rosenberg, PROTECTING THE BEST MEN at 53; Levy, EMERGENCE OF A FREE PRESS at xvi.

38. H. Nelson, Seditious Libel in Colonial America , 3 American Journal of Legal History 160 (1959).

39. Id. at 161, 164, 169-70; Buel, Freedom of the Press in Revolutionary America at 70.

40. Nelson, Seditious Libel in Colonial America at 163-64; J. Smith, continue

      PRINTERS AND PRESS FREEDOM 9 (New York: Oxford University Press, 1987).

41. Levy, EMERGENCE OF A FREE PRESS at 182.

42. C. Rossiter, SEEDTIME OF THE REPUBLIC 141 (New York: Harcourt, Brace, 1953); Trenchard and Gordon, 1 CATO'S LETTERS 249; 3 CATO'S LETTERS at 299, 302-03.

43. Trenchard and Gordon, 1 CATO'S LETTERS at 246-47, 253.

44. Rabban, Free Speech Clause at 40; Buel, Freedom of the Press in Revolutionary America at 74-75; Rabban, Ahistorical Historian at 827; Levy, EMERGENCE OF A FREE PRESS at 113; Smith, PRINTERS AND PRESS FREEDOM part 1. Rabban expressly acknowledges his debt to the historians of civic republicanism, especially Bernard Bailyn, Gordon Wood, and Buel.

45. J. Smith, A Reappraisal of Legislative Privilege and American Colonian Journalism , 61 Journalism Quarterly 97 (1984).

46. Smith, PRINTERS AND PRESS FREEDOM at 5-7; Rabban, Ahistorical Historian at 832-34; Rabban, Free Speech Clause at 41.

47. Levy, EMERGENCE OF A FREE PRESS at 182. In Garrison v. Louisiana , 379 U.S. 64 (1964), the Supreme Court took the "reckless disregard" standard of New York Times v. Sullivan (to be discussed in Chapters 3 and 4) and applied it to criminal libel on facts where the alleged criminal libel against certain judges was functionally the same as seditious libel. When Levy wrote, he thought that a country with a law of seditious libel could not have a libertarian tradition. Yet this was prior to Garrison ; and even now, after Garrison , it is conceivable (although I think it unlikely) that a person could be convicted of seditious libel if his or her libelous statements were intentionally false.

48. Independent Gazetteer , November 9, 1782, quoted in Teeter, The Printer and the Chief Justice at 239-40.

49. Independent Gazetteer , October 19, 1782 and November 9, 1782, both quoted in Teeter, The Printer and the Chief Justice at 239-40.

50. Independent Gazetteer , November 9, 1782 and December 7, 1782, quoted in Teeter, The Printer and the Chief Justice at 239-40.

51. Rosenberg, PROTECTING THE BEST MEN at 62.

52. Id. at 62-63.

53. Id. at 63.

54. Cushing to Adams, February 18, 1789, quoted in Levy, EMERGENCE OF A FREE PRESS at 199.

55. Id.

56. Id. at 199, 200.

57. Adams to Cushing, March 7, 1789, quoted in Levy, EMERGENCE OF A FREE PRESS at 200; Cushing to Adams, quoted at id. break

58. Schwartz, 1 BILL OF RIGHTS at 437-39. A fuller account of the "legislative history" of the press clause than this section attempts is available in Anderson, Origins of the Press Clause at 462-86.

59. P. Ford, ed., ESSAYS ON THE CONSTITUTION OF THE UNTIED STATES 289 (Brooklyn, N.Y.: Historical Printing Club, 1892); J. Wilson, An Address to a Meeting of the Citizens of Philadelphia (1787) in Schwartz, 1 BILL OF RIGHTS at 529.

60. Quoted in Levy, EMERGENCE OF A FREE PRESS at 270.

61. Anderson, Origins of the Press Clause at 471-73; Schwartz, 2 Bill of Rights at 842; D. Laycock, Nonpreferential Aid to Religion: A False Claim About Original Intent , 27 William and Mary Law Review 875, 907 (1989); 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES [ANNALS], 1st Cong. 456, 457 (J. Gales ed. 1834). This superb speech by Madison receives the attention it warrants in D. Laycock, Notes on the Role of Judicial Review, the Expansion of Federal Power, and the Structure of Constitutional Rights , 97 Yale Law Journal 1711 (1990).

62. ANNALS, 1st Cong. at 452, 690, 784.

63. Id. at 759, 808.

64. JOURNAL OF THE FIRST SESSION OF THE SENATE 70 (J. Gales and W. Seaton, printers, 1820). Douglas Laycock makes a similar point with respect to the debate over nonpreferential aid to religions. Had the framers wished to authorize nonpreferential aid, they knew how to word it; one draft of the establishment clause did so. But, like the Blackstonian draft of the press clause, it was rejected. Nonpreferential Aid to Religion at 879-83.

65. JOURNAL at 70-71, 77; ANNALS, 1st Cong. at 939.

66. Anderson, Origins of the Press Clause at 486.

67. A number of writers have emphasized the federalism aspects of the First Amendment, but no scholar has done a better job than William Van Alstyne in explaining that knowing what the states were permitted to do tells nothing about what the federal government supposedly lacks power to do. Constitutional Power and Free Speech: Levy's Legacy Revisited , 99 Harvard Law Review 1089 (1986). His argument is nevertheless overstated. What occurred at the state level respecting freedom of the press—and especially religious establishment—is relevant to what the founding generation thought about the meaning of those terms. Laycock, Nonpreferential Aid to Religion at 894-902.

68. Levy, LEGACY OF SUPPRESSION as interpreted by Levy in Liberty and the First Amendment: 1790-1800 , 68 American Historical Review 22 (1962); D. Anderson, Levy v. Levy , 84 Michigan Law Review 777, 782-83 (1986). break

69. Anderson, Origins of the Press Clause at 533; Levy, EMERGENCE OF A FREE PRESS at 236.

70. McDonald, NOVUS ORDO SECLORUM at 57-96; G. Wood, Ideology and the Origins of Liberal America , 44 William and Mary Quarterly 628, 634 (1987); Buel, Freedom of the Press in Revolutionary America at 70.

71. Rosenberg, PROTECTING THE BEST MEN at 70.

72. Z. Chafee, FREE SPEECH IN THE UNITED STATES (Cambridge, Mass.: Harvard University Press, 1941).

73. Teeter, From Revisionism to Orthodoxy at 523; Rabban, Ahistorical Historian at 799-801; Anderson, Levy v. Levy at 783-85.

74. Anderson, Origins of the Press Clause at 534; Levy, EMERGENCE OF A FREE PRESS at 272 (emphasis in original). As David Anderson notes, the quoted language is expressly contrary to Levy's thesis in Legacy of Suppression and inconsistent with points in Emergence of a Free Press: "To conclude that they intended to preserve seditious libel and Blackstone, and that they also intended to reject Blackstone and preserve the seditious press with which they were familiar, is not revision but confusion." Anderson, Levy v. Levy at 786.

1. Z. Chafee, FREE SPEECH IN THE UNITED STATES 79 (Cambridge, Mass.: Harvard University Press, 1941).

2. R. Wiebe, THE OPENING OF AMERICAN SOCIETY 3-125 (New York: Random House, 1984); J. Miller, THE FEDERALIST ERA 84-125 (New York: Harper and Row, 1960).

3. Wiebe, OPENINGS OF AMERICAN SOCIETY at 67-89; R. Buel, SECURING THE REVOLUTION 93-135 (Ithaca, N.Y.: Cornell University Press, 1972).

4. Buel, SECURING THE REVOLUTION at 37; Wiebe, OPENING OF AMERICAN SOCIETY at 72, 87; R. Buel, Freedom of the Press in Revolutionary America , in B. Bailyn and J. Hench, eds., THE PRESS AND THE AMERICAN REVOLUTION at 82-83 (Boston: Northeastern University Press, 1981).

5. Wiebe, OPENING OF AMERICAN SOCIETY at 73; P. Foner, ed., THE DEMOCRATIC- REPUBLICAN SOCIETIES, 1790-1800: A Documentary Sourcebook 64 (Westport, Conn.: Greenwood Press, 1976); D. Rabban, Ahistorical Historian , 37 Stanford Law Review 795, 844 (1985).

6. Foner, DEMOCRATIC-REPUBLICAN SOCIETIES at 64; E. Link, DEMOCRATIC-REPUBLICAN SOCIETIES, 1790-1800, at 162 (New York: continue

      Columbia University Press, 1942); Buel, SECURING THE REVOLUTION at 103-04; Rabban, Ahistorical Historian at 845.

7. Wiebe,  OPENING OF AMERICAN SOCIETY at 72-73; Rabban, Ahistorical Historian at 845; N. Rosenberg, PROTECTING THE BEST MEN 73 (Chapel Hill: University of North Carolina Press, 1986).

8. Rosenberg, PROTECTING THE BEST MEN at 71-73; Buel, SECURING THE REVOLUTION  at 99-101.

9. J. Appleby, CAPITALISM AND A NEW SOCIAL OREDER 77 (New York: New York University Press, 1984).

10. Rosenberg, PROTECTING THE BEST MEN at 74-78; Appleby, CAPITALISM AND A NEW SOCIAL OREDER at 75-76; J. Smith, Freedom's Fetters 14, 21 (Ithaca, N.Y.: Cornell University Press, 1956).

11. Smith, FREEDOM'S FETTERS at 5-6.

12. Id. at 7.

13. Id. at 14.

14. Id. at 102-03, 193-95; J. Miller, CRISIS IN FREEDOM 63-64 (Boston: Atlantic-Little, Brown, 1951).

15. Miller, CRISIS IN FREEDOM at 69; Miller, Federalist Era at 231; L. Levy, EMERGENCE OF A  FREE PRESS 297 (New York: Oxford University Press, 1985). The Sedition Act, 1 US Statutes at Large 596-97 (1798), is reprinted in Smith, FREEDOM'S FETTERS at 441-42.

16. D. Anderson, The Origins of the Press Clause , 30 UCLA Law Review 455, 516-19 (1983).

17. Otis stated that the objections to the Act "might be reduced to two inquiries. In the first place, had the Constitution given Congress cognizance over the offences described in this bill prior to the adoption of the amendments of the Constitution? and, if Congress had that cognizance before that time, have those amendments taken it away?" THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES [Annals], 5th Cong. 2145-46 (1798).

18. J. Cooke, ed., THE FEDERALIST no. 84 (A. Hamilton) at 579 (Middletown, Conn.: Wesleyan University Press, 1961).

19. ANNALS, 5th Cong. at 2146.

20. Id. at 2165, 2167.

21. United States v. Worrell , 2 U.S. (2 Dall.) 384 (1798); United States v. Hudson , 11 U.S. (7 Cranch) 32 (1812); C. Warren, 1 THE SUPREME COURT IN UNITED STATES HISTORY 434-35 (Boston: Little, Brown, 1922).

22. Alexander Addison quoted in Buel, SECURING THE REVOLUTION at 256 (emphasis in original); Levy, EMERGENCE OF A FREE PRESS at 305-08. break

23. Rabban, Ahistorical Historian at 850-51; Smith, FREEDOM'S FETTERS at 324-25, 153-55; Cooke, FEDERALIST no. 71 at 483-84.

24. Miller, CRISIS IN FREEDOM at 137; Smith, FREEDOM'S FETTERS  at 101; Harper: ANNALS, 5th Cong. at 1179, 2102-03; Allen: id. at 2093-2100.

25. Smith, FREEDOM'S FETTERS at 130; Miller, Federalist Era at 234.

26. Smith, FREEDOM'S FETTERS at 21, 26; ANNALS, 5th Cong. at 2110; Buel, SECURING THE REVOLUTION at 235; Miller, Federalist Era at 235; Anderson, Origins of the Press Clause at 515-16; ANNALS, 6th Cong. at 93, 922, 952 (1801).

27. Miller, CRISIS IN FREEDOM at 85; ANNALS, 5th Cong. at 2162.

28. Wiebe, OPENING OF AMERICAN SOCIETY at 94-95. The Virginia Resolutions, the Kentucky Resolutions, and Madison's Report on the Virginia Resolutions are reproduced in Volume 4 of the enlarged edition of J. Elliot's DEBATES ON THE FEDERAL CONSTITUTION at 528 (Philadelphia.: J. B. Lippincott, 1907).

29. Elliot, 4 DEBATES at 569.

30. Id. at 569-70.

31. Id. at 569; ANNALS, 5th Cong., 2nd sess. at 2160-61, ANNALS, 5th Cong., 3rd sess. at 3003-14; Levy, EMERGENCE OF A FREE PRESS at xii, 284-349; Rabban, Ahistorical Historian at 851-54; Anderson, Origins of the Press Clause at 529-33.

32. S. Levinson, CONSTITUTIONAL FAITH 9-11 (Princeton, N.J.: Princeton University Press, 1988); Rosenberg, PROTECTING THE BEST MEN at 80; H. Powell, The Original Understanding of Original Intent , 98 Harvard Law Review 885 (1985).

33. ANNALS, 1st Cong., 1st sess. at 456. The more common phrase "parchment barriers" appears in Federalist no. 48, but it refers to provisions regarding separation of powers and not, as too commonly assumed, to a bill of rights.

34. Elliot, 4 DEBATES at 578 (Madison's Report ), 545 (Kentucky Resolution of 1799).

35. Madison to Edward Everett, August 30, 1830, published in the October 30, 1830, North American Review , reprinted in M. Meyers, ed., THE MIND OF THE FOUNDER at 532-44 (Indianapolis: Bobbs—Merrill, 1973).

36. Elliot, 4 DEBATES at 568.

37. Gitlow v. New York , 268 U.S. 652, 672 (1925) (dissenting); Abrams v. United States , 250 U.S. 616, 624 (1919) (dissenting); Schenck v. United States , 249 U.S. 47 (1919); Patterson v. Colorado , 205 U.S. 454, 462 (1907); Holmes to Zechariah Chafee, June 12, 1922, quoted in continue

      D. Rabban, The Emergence of Modern First Amendment Doctrine , 50 University of Chicago Law Review at 1265 (1983).

38. Quoted in H. Peterson and G. Fite, OPPONENTS OF THE WAR, 1917-18, at 14 (Madison: University of Wisconsin Press, 1957).

39. T. Gregory, Suggestions of Attorney—General Gregory to the Executive Committee in Relation to the Department of Justice , 4 American Bar Association Journal 305, 306 (1918); Z. Chafee, FREE SPEECH IN THE UNITED STATES 37 (Cambridge, Mass.: Harvard University Press, 1948); J. O'Brian, Civil Liberty in War Time , 42 Report of the New York State Bar Association 275, 277 (1919).

40. S. 2, 65th Cong. 1st sess. § 4 (1917); Title 1, § 3 of the Espionage Act, 40 US Statutes at Large 217 (1917); Title 12, id.; H. R. Report no. 69, 65th Cong., 1st sess. 19 (1917); H. Edgar and B. Schmidt, The Espionage Statutes and Publication of Defense Information , 73 Columbia Law Review 929, 946-66 (1973).

41. Gregory, Suggestions at 306; Wilson to Representative Edwin Webb, Chairman of the Judiciary Committee, May 22, 1917, read by Webb on the House floor, 55 Congressional Record 3144 (1917); T. Carroll, Freedom of Speech and of the Press in War Time 17 Michigan Law Review 621, 624 (1919).

42. Rabban, Emergence of Modern First Amendment Doctrine at 1218-19; Edgar and Schmidt, Espionage Statutes at 941.

43. 55 Congressional Record 1594, 1595 (1917).

44. Debs v. United States , 249 U.S. 211 (1919).

45. H. Nelson, D. Teeter, and D. Le Duc, LAW OF MASS COMMUNICATIONS 331-33 (Westbury, N.Y.: Foundation Press, 6th ed. 1989); Rabban, Emergence of Modern First Amendment Doctrine at 1219-23; Peterson and Fite, OPPONENTS OF THE WAR at 95.

46. Rabban, Emergence of Modern First Amendment Doctrine at 1223; 55 Congressional Record 1822 (1917).

47. P. Murphy, THE MEANING OF FREEDOM OF SPEECH 18 (Westport, Conn.: Greenwood Publishing, 1972); R. Wiebe, THE SEARCH FOR ORDER: 1877-1920 at 287-88 (New York: Hill and Wang, 1967); B. Bailyn, D. Davis, D. Donald, J. Thomas, R. Wiebe, and G. Wood, THE GREAT REPUBLIC 1024 (Boston: Little, Brown, 1977); M. Graber, TRANSFORMING FREE SPEECH (Berkeley and Los Angeles: University of California Press, 1991).

48. Schenck; Debs , 249 U.S. at 214; D. Rabban, The First Amendment in Its Forgotten Years , 90 Yale Law Journal 514 (1981).

49. Frohwerk v. United States , 249 U.S. 204 (1919); Brief for Plaintiff in Error at 1-4, Frohwerk .

50. Schenck , 249 U.S. at 51, 52. break

51. Frohwerk , 249 U.S. at 209.

52. Id. at 208; Schenck , 249 U.S. at 52; Rabban, Emergence of Modern first Amendment Doctrine at 1261.

53. Rabban, Emergence of Modern first Amendment Doctrine at 1232; Alfred Bettman to Zechariah Chafee, October 27, 1919, quoted in id. at 1296.

54. J. Daniels, THE WILSON ERA 116 (Chapel Hill: University of North Carolina Press, 1944); Josephus Daniels, Diary, August 7 and 16, 1917, in A. Link, ed., 43 THE PAPERS OF WOODROW WILSON (Princeton, N.J.: Princeton University Press, 1983).

55. Max Eastman, Amos Pinchot, and John Reed to Woodrow Wilson, July 12, 1917, in Link, 43 PAPERS OF WOODROW WILSON (listing twelve excluded publications); S. Miller, VICTOR BERGER AND THE PROMISE OF CONSERVATIVE SOCIALISM 194 (Westport, Conn.: Greenwood Press, 1973) ("fifteen major socialist publications").

56. Wilson to Burleson, September 4 and 24, October 11, 18, and 30, in Link, 44 PAPERS OF WOODREW WILSON; Burleson's notation is at the bottom of Wilson's letter of September 24; R. Baker, ed., 7 WOODROW WILSON: LIFE AND LETTERS 165 n. 1 (Garden City, N.Y.: Doubleday, 1939).

57. Burleson to Wilson, July 16, 1977, in Link, 43 PAPERS OF WOODROW WILSON.

58. Burleson to Wilson, October 16, 1917, in Link, 44 PAPERS OF WOODROW WILSON; Wilson to Arthur Brisbane, September 24, 1917, in id.; Wilson to Herbert Croly, October 22, 1917, in id.

59. 20 US Statutes at Large 355 (1879); Lewis Publishing v. Morgan , 229 U.S. 288, 304 (1913).

60. The circulation figure comes from Justice Brandeis's dissent in United States ex rel. Milwaukee Socialist Democratic Publishing Co. v. Burleson , 255 U.S. 407, 418 (1921). Surprisingly, Miller in Victor Berger does not provide circulation figures for the paper.

61. Miller, VICTOR BERGER at 198.

62. Id. at 199, 201, 202, 205; Peterson and Fite, OPPONENTS OF THE WAR at 164-65.

63. Milwaukee Socialist Democratic Publishing , 255 U.S. at413, 414, 436. Chafee, FREE SPEECH IN THE UNITED STATES at 303, brought my attention to the Food Control Act decision, United States v. L. Cohen Grocery Co , 255 U.S. 81 (1921).

64. L. Powe, Justice Douglas After Fifty Years: The First Amendment, McCarthyism and Rights , 6 Constitutional Commentary 269 (1989); V. Blasi, The Pathological Perspective and the first Amendment , 85 Columbia Law Review 449 (1985). break

65. Gilberts. Minnesota , 254 U.S. 325, 327, 333 (1920).

66. Chafee, FREE SPEECH IN THE UNITED STATES at 56-57; Rabban, Emergence of Modern First Amendment Doctrine at 1232. The latter notes that even jury instructions "unusually sensitive to free speech" generally resulted in jury verdicts to convict.

67. Milwaukee Socialist Democratic Publishing , 255 U.S. at 414.

1. H. Kalven, THE NEGRO AND THE FIRST AMENDMENT 3 (Chicago: University of Chicago Press, 1965).

2. New York Times , March 19, 1960; T. Branch, PARTING THE WATERS: AMERICA IN THE KING YEARS, 1954-63 at 288-89 (New York: Simon and Shuster, 1988).

3. NAACP v. Alabama ex rel. Patterson , 357 U.S. 449 (1958), 360 U.S. 240 (1959), 368 U.S. 16 (1961), culminating with 377 U.S. 288 (1964).

4. Branch, PARTING THE WATERS at 287-89.

5. Id. at 293-97.

6. Id. at 309-11.

7. New York Times , March 29, 1960. A large blow—up of the ad is appended to both the petition for certiorari and the petitioner's brief on the merits, New York Times v. Sullivan , 376 U.S. 254 (No. 606, October Term 1962, and no. 39, October Term 1963).

8. I have inserted a dash before "and millions of others"; in the original ad, only the dash following this phrase was printed.

9. Branch, PARTING THE WATERS at 289.

10. Brief of Petitioner, New York Times v. Sullivan at 18-19 (No. 39, October Term 1963).

11. ACLU Amicus Brief, New York Times v. Sullivan (No. 39, October Term 1963)—the appendix lists every reported Alabama libel case in the twentieth century.

12. Id. at 5-6.

13. Brief of Petitioner at 19-21; ACLU Amicus Brief at 5-6; H. Salisbury, WITHOUT FEAR OR FAVOR 383-84 (New York: Times Books, 1980).

14. Brief of Petitioner at 25-28; Salisbury, WITHOUT FEAR OR FAVOR at 384. The Bessemer indictments hung over Salisbury "for several years since no DA was willing to take the political risk of dismissing them. Finally one quiet day three or four years later (I forget the exact date) " they were dismissed (Salisbury to author, May 11, 1989).

15. H. Kalven, The New York Times Case: A Note on the "Central Meaning of the First Amendment," 1964 Supreme Court Review 191, continue

      194-97; H. Kalven, A WORTHY TRADITION 62. (New York: Harper and Row, 1988).

16. Branch, PARTING THE WATERS at 371.

17. Id. at 370-71; Brief of Respondent at 14-15.

18. Kalven, New York Times Case at 196.

19. Id. at 195-96; Kalven, WORTHY TRADITION at 62.; D. Anderson, The Case for Libel Reform (forthcoming); Branch, PARTING THE WATERS at 391; Parks v. New York Times Co . 308 F.2d 474 (5th Cir. 1962), reversing 195 F. Supp. 919 (M.D. Ala. 1961) (Judge Frank Johnson refusing to remand to state court). Because of the Supreme Court decision in Sullivan's case, these remaining cases never went to trial.

20. J. Goodale, "Is the Public 'Getting Even' with the Press in Libel Cases?" New York Law Journal , August 11, 1981, at 1-2. In this regard, it bears noting that the New York Herald Tribune , beset with similar problems, died in 1966; given the way strikes were wracking both papers, it was not inevitable that the Times , rather than the Herald Tribune , would be the survivor. This is not to suggest, however, that the similar problems of the two papers were identical—the Herald Tribune was losing money each year, whereas the Times operated under "perilously thin profit margins." R. Kluger, THE PAPER: THE LIFE AND DEATH OF THE NEW YORK TRIBUNE at 717 (New York: Alfred A. Knopf, 1986).

21. New York Times v. Sullivan , 273 Ala. 656, 144 So. 2d 25, 29, 51 (1962).

22. On the NAACP, see the cases in note 3 above, plus NAACP v. Button , 371 U.S. 415 (1963), and Gibson v. Florida Legislative Investigating Committee , 372 U.S. 539 (1963). On the constitutionality of state libel laws, see Chaplinsky v. New Hampshire , 315 U.S. 568, 571-72 (1942); Pennekamp v. Florida , 328 U.S. 331, 348-49 (1946); Beauharnais v. Illinois , 343 U.S. 250 (1952); Roth v. United States , 354 U.S. 476, 483 (1957); Konigsberg v. State Bar of California , 366 U.S. 36, 49-50 (1961). It should be noted, however, that in the same term that the Supreme Court stated in Chaplinsky that libel was a category of unprotected speech, the Court split four-four (Jackson not participating) on that very question in Schenectady Union Publishing Co. v. Sweeney , 316 U.S. 642 (1942). The only legal literature on the issue consisted of a paper by Harry Kalven written a decade earlier, cited in Kalven, New York Times Case at 192 n. 4, and Justice Black's views that the First Amendment protected all speech "absolutely." See E. Cahn, Justice Black and First Amendment "Absolutes": A Public Interview , 37 New York University Law Review 549 (1962). Natchman is quoted in 16 Media Law Reporter, April 11, 1989.

23. Brief of Petitioner at 49-50, New York Times v. Sullivan (No. 39, continue

      October Term 1963). Wechsler summarized his strategy twenty-five years later: "If you feel that the environment is on your side, that legal trends are on your side, the problem of counsel is to present the court with adequate materials to support that case." 16 Media Law Reporter, April 11, 1989.

24. New York Times v. Sullivan , 376 U.S. 154, 276 (1964).

25. A. Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (New York: Oxford University Press, 1948).

26. New York Times v. Sullivan , 376 U.S. at 271, 279; Speiser v. Randall , 357 U.S. 513 (1958).

27. New York Times v. Connor , 365 F.2d 567 (5th Cir. 1966); Salisbury, WITHOUT FEAR OR FAVOR at 389-90.

28. Kalven, New York Times Case . In his closing footnote Kalven also gave Meiklejohn's imprimatur: "It is an occasion for dancing in the streets" (id. at 221 n. 125).

29. L. Tribe, CONSTITUTIONAL CHOICES 190-92 (Cambridge, Mass.: Harvard University Press, 1985); L. Powe, Making the Hard Choices Easy , 1986 American Bar Foundation Research Journal 57, 68.

30. L. Powe, Justice Douglas After Fifty Years: The First Amendment, McCarthyism and Rights, 6 Constitutional Commentary 269 (1989).

31. Dennis v. United States , 341 U.S. 494, 509 (1951); New York Times v. Sullivan , 376 U.S. at 270.

32. Rosenblatt v. Baer , 383 U.S. 75 (1966); Monitor Patriot v. Roy , 401 U.S. 265 (1971); Ocala Star-Banner v. Damron , 401 U.S. 295 (1971).

33. Branch, PARTING THE WATERS at 657; Associated Press v. Walker , 388 U.S. 130, 140-42 (1967) (decided as Curtis Publishing v. Butts) .

34. Quoted in Butts , 388 U.S. at 142.

35. Butts , 388 U.S. at 163-64 (separate opinion).

36. Kalven, New York Times Case at 221; Rosenbloom v. Metro-media , 403 U.S. 29, 32-34, 40, 43 (1971). The quotations are from Justice Brennan's plurality opinion, which was joined by Chief Justice Burger and Justice Blackmun. Although Justice Douglas did not participate in Rosenbloom , his position was that all libel suits are unconstitutional. When this and Justice Black's identical position are counted in, there were at least five justices who would agree with the Brennan position as the constitutional minimum. See Rosenbloom , 403 U.S. at 58—59 (opinion of Justice White).

37. Garrison v. Louisiana , 379 U.S. 64 (1964); St. Amant v. Thompson , 390 U.S. 727, 731 (1968); Greenbelt Publishing Association v. Bresler , 398 U.S. 6 (1970); Time, Inc. v. Hill , 385 U.S. 374 (1967). See generally H. Kalven, The Reasonable Man and the First Amendment , 1967 Supreme Court Review 267. Richard Nixon made his only Supreme continue

      Court appearance as counsel in Time, Inc. v. Hill; Leonard Garment has published an interesting reminiscence on Nixon and Hill, "Annals of Law (Nixon and Privacy)," New Yorker , April 17, 1989, at 90.

38. LaMont v. Postmaster General , 381 U.S. 301 (1965).

39. DeGregory v. New Hampshire , 383 U.S. 825 (1966); Elfbrandt v. Russell , 384 U.S. 11 (1966); Keyishian v. Board of Regents , 385 U.S. 589 (1967); United States v. Robel , 389 U.S. 258 (1967).

40. Jacobellis v. Ohio , 378 U.S. 184, 197 (1964); Ginzburg v. United States , 383 U.S. 463 (1966); Mishkin v. New York , 383 U.S. 502 (1966); Memoirs v. Massachusetts , 383 U.S. 413 (1966); Redrup v. New York , 386 U.S. 767 (1967). Thirty-one cases were Redrupped. Miller v. California , 413 U.S. 15, 22 n. 3 (1973).

41. Stanley v. Georgia , 394 U.S. 557 (1969); United States v. Reidel , 402 U.S. 351 (1971); United States v. 37 Photographs , 402 U.S. 363 (1971); Interstate Circuit v. Dallas , 390 U.S. 676, 704 (1968).

42. Bond v. Floyd , 385 U.S. 116 (1966).

43. Brandenburg v. Ohio , 395 U.S. 444, 447 (1969). F. Strong, Fifty Years of "Clear and Present Danger," 1969 Supreme Court Review 41; H. Linde, "Clear and Present Danger" Reexamined , 22 Stanford Law Review 1163 (1970); G. Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine , 27 Stanford Law Review 719 (1975).

44. Cohen v. California , 403 U.S. 15, 24—25 (1971).

45. O'Brien v. United States , 391 U.S. 367 (1968).

46. S. Ungar, THE PAPERS AND THE PAPERS 19 (New York: E. P. Dutton, 1972); Salisbury, Without Fear or Favor at 82; F. Abrams, "The Pentagon Papers Case a Decade Later," New York Times Magazine , June 7, 1981, at 22.

47. Salisbury, WITHOUT FEAR OR FAVOR at 57-63, 228; S. Hersh, THE PRICE OF POWER 328-29 (New York: Summit Books, 1983).

48. Salisbury, WITHOUT FEAR OR FAVOR at 121, 126-27.

49. New York Times , June 13, 1971, at 1. The remaining important story was of the United States counseling India and Pakistan to exercise caution in the crisis that was about to change East Pakistan into the independent Bangladesh. The four diplomatic volumes which Ellsberg protected were routinely available to reporters during his trial in 1973, but subsequently were placed under court seal. Hersh, PRICE OF POWER at 311 n.

50. Salisbury, WITHOUT FEAR OR FAVOR at 233-36, 213-15; Hersh, PRICE OF POWER at 386.

51. Salisbury, WITHOUT FEAR OR FAVOR at 223-28, 235-36; Hersh, PRICE OF POWERat 383-89; Abrams, "Pentagon Papers Case."

52. Salisbury, WITHOUT FEAR OR FAVOR at 243-47. Lord, Day, and continue

      Lord's refusal to defend was not without consequences; the Times abandoned the firm.

53. Abrams, "Pentagon Papers Case"; Salisbury, WITHOUT FEAR OR FAVOR at 259—62. Although his performance that day (only) might lead to a different conclusion, Gurfein, a distinguished lawyer with strong ties to Thomas Dewey, was not a Nixon loyalist.

54. Ungar, THE PAPERS AND THE PAPERS at 130-46; Salisbury, WITHOUT FEAR OR FAVOR at 292-94.

55. Salisbury, WITHOUT FEAR OR FAVOR at 294; Ungar, THE PAPERS AND THE PAPERS at 151-58.

56. Salisbury, WITHOUT FEAR OR FAVOR at 322-23; Ungar, THE PAPERS AND THE PAPERS at 204. Amazingly, the Gayler supplement to his affidavit, which produced a discussion that sounds very much like a trial hearing, occurred before the DC Circuit Court of Appeals.

57. United States v. New York Times , 444 F.2d 544 (2d Cir. 1971); United States v. Washington Post , 446 F.2d 1327 (D.C. Cir. 1971).

58. United States v. Washington Post , 446 F.2d at 1330.

59. I was Justice Douglas's law clerk at the time. My recollection is that with the term winding down (wound down for me), there was not the earlier time pressure, and over leisurely lunches in the law clerks' private dining room, the clerks closely followed the progress of the cases.

60. Griswold, "Secrets Not Worth Keeping," Washington Post , February 15, 1989, at A25; Salisbury, WITHOUT FEAR OR FAVOR at 327-29; Ungar, THE PAPERS AND THE PAPERS at 221-23.

61. R. Woodward and S. Armstrong, The Brethren 139-50 (New York: Simon and Shuster, 1979) contains, as usual, a remarkably accurate account of the Court's internal deliberations about this case. The most interesting aspect of this account is the report that James Reston, a senior columnist and vice-president of the Times , called Burger to ask for a meeting about the case. Harrison Salisbury doubts that it happened—"the supposed episode would seem to be a product of the hysteria of the period"—because Reston (a) has no recollection of calling Burger, (b) would never think of lobbying the chief justice, and (c) "wrote his last column for The Times before departing on June 26 and it was published Sunday June 27. He left the next day for China." Without Fear or Favor at 348 n. There seem to be several possibilities: (1) Harlan, to whom Burger told the story, was wrong; (2.) Burger made it up; (3) Reston tried before he left for China. I am 100 percent sure that Burger told the story to Harlan, because Harlan reported it contemporaneously to his clerks and would not have told them if it were not so, and his clerks would have had no reason to make up such a story and tell others, myself included. "Hysteria" it may be, but either Burger was lying to Harlan or continue

      Reston's recollection, intentionally or not, caused him to mislead Salisbury. Salisbury has written to me that Reston has a notoriously bad memory, and so his failure to remember ought not to count. But his datebooks should; and they make it unlikely that he called Burger. On that basis I agree with Salisbury that, for reasons of his own. Burger created the incident. Salisbury to author. May 28, 1989.

62. New York Times v. United States , 403 U.S. 713 at 749, 750, 752 (Burger), 753 (Harlan), 763 (Blackmun).

63. Ungar, THE PAPERS AND THE PAPERS at 250-51; Salisbury, WITHOUT FEAR OR FAVOR at 336, 347-48. Abrams, "Pentagon Papers Case," is an interesting retrospective by one of the Times' s legal team.

64. R. Nixon, RN: THE MEMOIRS OF RICHARD NIXON 510-14 (New York: Grosset and Dunlap, 1978); Salisbury, WITHOUT FEAR OR FAVOR at 337-39, 445-46.

65. New York Times v. United States , 403 U.S. at 718.

66. Id. at 717.

67. De Jonge v. Oregon , 299 U.S. 353, 365 (1937).

1. A. Lewis, New York Times v. Sullivan Reconsidered , 83 Columbia Law Review 603 (1983).

2. F. Schauer, Public Figures , 25 William and Mary Law Review 905, 911-12 (1984); St. Amant v. Thompson , 390 U.S. 727, 731 (1968); Gertz v. Robert Welch, Inc ., 418 U.S. 323 (1974); D. Robertson, Defamation and the First Amendment , 54 Texas Law Review 199 (1976) (Gertz necessary to check press power); D. Anderson, A Response to Professor Robertson: The Issue Is Control of Press Power , 54 Texas Law Review 271 (1976).

3. Lewis, New York Times v. Sullivan Reconsidered; H. Johnston and H. Kaufman, "Annenberg, Sullivan at Twenty-Five and the Question of Libel Reform," 7 Communications Lawyer 3 (Winter 1989).

4. Bose Corporation v. Consumers Union , 466 U.S. 485 (1984); Philadelphia Newspapers v. Hepps , 475 U.S. 767 (1986); Hustler Magazine v. Falwell , 485 U.S. 46 (1988).

5. Edwards v. National Audubon Society , 556 F.2d 113, 120 (2d Cir. 1977); Ollman v. Evans , 750 F.2d 970, 1002 (D.C. Cir. 1984) (concurring); Milkovich v. Lorain Journal Co ., 110 S. Ct. 2695, 2706 (1990).

6. L. Tribe, AMERICAN CONSTITUTIONAL LAW 865 (Mineola, N.Y.: Foundation Press, 2d ed. 1988); R. Epstein, Was New York Times v. Sullivan Wrong? 53 University of Chicago Law Review 782 (1986); Lewis, New York Times v. Sullivan Reconsidered . break

7. B. Brewin and S. Shaw, VIETNAM ON TRIAL (New York: Atheneum, 1987); R. Adler, RECKLESS DISREGARD (New York: Alfred A. Knopf, 1986); R. Smolla, SUING THE PRESS 182-237 (New York: Oxford University Press, 1986); Tavoulareas v. Piro , 817 F.2d 761 (D.C. Cir. 1987) (en bane), cert. denied, 484 U.S. 870 (1987); J. Soloski, The Study and the Libel Plaintiff , 71 Iowa Law Review 217, 219 (1985).

8. M. Newcity, Libel Law Then and Now , 1989 Wisconsin Law Review 359, 362, 379-82.

9. R. Bezanson, G. Cranberg, and J. Soloski, LIBEL LAW AND THE PRESS (New York: Free Press, 1987); M. Franklin, Winners and Losers and Why , 1980 American Bar Foundation Research Journal 455; M. Franklin, Suing the Media for Libel , 1981 American Bar Foundation Research Journal 797.

10. Bezanson, Cranberg, and Soloski, LIBEL LAW at 7-11.

11. Soloski, The Study at 219; Bezanson, Cranberg, and Soloski, LIBEL LAW at 13-15. Franklin, in his sample, found that public officials were more often accused of crime than incompetence ( Suing the Media for Libel at 812-13).

12. Bezanson, Cranberg, and Soloski, LIBLE LAW at 15-17.

13. Id. at 21-28.

14. Id. at 30-53; Smolla, SUING THE PRESS at 187; G. Cranberg, Fanning the Fire , 71 Iowa Law Review 221, 223, 224 (1985).

15. Bezanson, Cranberg, and Soloski, LIBEL LAW at 55-77.

16. Id. at 77, 58-59; Franklin, Suing the Media for Libel at 801-02.

17. Bezanson, Cranberg, and Soloski, LIBEL LAW at 133-34, 144-46.

18. Id. at 179; Franklin, Suing the Media for Libel at 829. Tavoulareas is quoted in Smolla, Suing the Press at 256.

19. Bezanson, Cranberg, and Soloski, LIBEL LAW at 129-30.

20. Smolla, SUING THE PRESS at 184-85; Herbert v. Lando , 441 U.S. 153, 176 (1979).

21. Bezanson, Cranberg, and Soloski, LIBEL LAW at 142-44. Robert Post's brilliant and sophisticated article, The Social Foundations of Defamation Law: Reputation and the Constitution , 74 California Law Review 691 (1986), illustrates that the dignity component of reputation is quite capable of explaining much of the jury behavior.

22. Bezanson, Cranberg, and Soloski, LIBLE LAW at 178, 153, 289 n. 131; Franklin, Winners and Losers and Why at 473; Franklin, Suing the Media for Libel at 805.

23. Bezanson, Cranberg, and Soloski, LIBEL LAW at 3, 199 (quoting Robert Sack).

24. D. Anderson, The Case for Libel Reform (forthcoming).

25. Gertz , 418 U.S. at 329; 680 F.2d 527 (7th Cir. 1982). break

26. Dun & Bradstreet v. Greenmoss Builders , 472 U.S. 749 (1985).

27. Pring v. Penthouse , 695 F.2d 438 (10th Cir. 1982); Smolla, Suing the Press 162-64.

28. Tavoulareas; Smolla, SUING THE PRESS at 182-97.

29. Time, Inc. v. Firestone , 424 U.S. 448 (1976).

30. Green v. Alton Telegraph Printing Co ., 107 Ill. App. 3d 755, 438 N.E.2d 201 (1982); Smolla, SUING THE PRESS at 74.

31. Othello , act 3, sc. 3, lines 155-61; Post, Social Foundations of Defamation Law; Smolla, SUING THE PRESS at 8-9, 13, 14-25; W. Van Alstyne, First Amendment Limitations on Recovery from the Press , 25 William and Mary Law Review 793, 794-95 (1984); M. Franklin, A Critique of Libel Law , 18 University of San Francisco Law Review 1, 9 (1983).

32. Anderson, Case for Libel Reform; D. Laycock, MODERN AMERICAN REMEDIES 591-613 (Boston: Little, Brown, 1985).

33. Anderson, Case for Libel Reform .

34. Herbert v. Lando , 568 F.2d 974 (2d Cir. 1977).

35. Herbert v. Lando , 441 U.S. 153 (1979); G. Cranberg, "Libel Judges Are Setting the Standards for the Press," Washington journalism Review , September 1989 at 41; M. Franklin, Reflections on Herbert v. Lando , 31 Stanford Law Review 1065 (1979); W. Brennan, Address , 32 Rutgers Law Review 173, 179-81 (1979).

36. J. Lubell quoted in a Mobil Corp. advertisement. New York Times , September 25, 1983, at 25; R. Cunningham, The Eight Most Common Complaints , Editor and Publisher, March 19, 1983, at 40; Anderson, Case for Libel Reform .

37. Schauer, Public Figures at 927.

38. Id. at 927 n. 100. For a contrast, even if overstated, with Schauer's optimism about press behavior, see M. Hertsgaard, ON BENDED KNEE: THE PRESS AND THE REAGAN PRESIDENCY (New York: Farrar, Straus, Giroux, 1988).

39. A. France, THE RED LILY 75 (W. Stephens, trans.) (London: John Lane, 1924).

40. S. Brill, American Lawyer July/August 1985 at 33; Johnston and Kaufman, "Libel Reform" at 8.

41. B. Fein, NEW YORK TIMES V. SULLIVAN: AN OBSTACLE TO ENLIGHTENED PUBLIC DISCOURSE AND GOVERNMENT RESPONSIVENESS TO THE PEOPLE (WASHINGTON D.C.: AMERICAN LEGAL FOUNDATION, 1984); M. FRANKLIN, What Does "Negligence" Mean in Defamation Cases? 6 Comm/Ent Law Journal 259 (1984); M. Franklin, Public Officials and Libel , 5 Cardozo Arts and Entertainment Law Journal 51, 66-69 (1986). break

42. Rosenbloom v. Metromedia , 403 U.S. 29, 62 (Harlan, dissenting), 78 (Marshall, dissenting) (1971).

43. D. Anderson, Reputation, Compensation and Proof , 25 William and Mary Law Review 747 (1984); Aware, Inc. v. Faulk , 14 N.Y.2d 899, 252 N.YS.2d 95, 200 N.E.2d 778 (1964), cert. denied, 380 U.S. 916 (1965); J. Faulk, FEAR ON TRIAL (Austin: University of Texas Press, 1983).

44. Anderson, Case for Libel Reform; L. Forer, A CHILLING EFFECT (New York: Norton, 1987); Faulk .

45. Smolla, SUING THE PRESS at 242; Van Alstyne, Limitations on Recovery from the Press at 803—09; F. Abrams, "Why We Should Change the Libel Law," New York Times Magazine , September 29, 1985, at 34, 93; Browning-Ferris Industries v. Kelco Disposal, Inc ., 109 S. Ct. 2909 (1989).

46. Most of the Winter 1989 issue of Communications Lawyer is given over to discussions of the proposal.

47. Cranberg, "Libel Judges Are Setting Standards for the Press," Washington Journalism Review , September 1989 at 42, 44.

48. Johnston and Kaufman, "Libel Reform" at 4; E. Roberts, "When Freedom of Expression Becomes a Financial Burden," remarks on receiving the John Peter Zenger award, November 13, 1987, quoted in H. Nelson, D. Teeter, and D. Le Duc, LAW OF MASS COMMUNICATIONS at 143 (Westbury, N.Y: Foundation Press, 6th ed. 1989); Bezanson, Cranberg, and Soloski, libel law at 49:"Attend a meeting of editors and chances are you will hear complaints, accompanied by nods of approval from colleagues who had similar experiences, about how the editors were misquoted in their own papers. Studies of press credibility by journalism groups invariably concluded that inaccuracy and unfairness are major parts of the credibility problem."

49. M. Franklin, A Declaratory Judgment Alternative to Current Libel Law , 74 California Law Review 809 (1986). Franklin proposes some delicate fee-shifting arrangements whereby the prevailing party would receive reasonable attorneys' fees, subject to several exceptions that appear intended to swallow the rule. The key exception would preclude the awarding of attorneys' fees to a successful defendant where plaintiff brought the action with a reasonable chance of success and attempted (prior to the suit) to present evidence to the defendant that the statement it published was false.

50. Anderson, Case for Libel Reform .

51. Gertz , 418 U.S. at 340-41; Greenmoss Builders , 472 U.S. at 757-61. break

52. Brewin and Shaw, VIETNAM ON TRIAL 90-91; Chicago Tribune , February 19, 1989.

53. Franklin, Declaratory Judgment Alternative at 828.

54. New York Times , December 18, 1983; Brewin and Shaw, VIETNAM ON TRAIL at 314, 352-53.

1. J. Elliot, ed., 4 DEBATES ON THE FEDERAL CONSTITUTION 569 (Philadelphia: J. B. Lippincott, 1907).

2. S. Barnett, The Puzzle of Prior Restraint , 26 Stanford Law Review 539 (1977); F. Schauer, Fear, Risk, and the First Amendment , 58 Boston University Law Review 685, 725—30 (1978); J. Jeffries, Rethinking Prior Restraint , 92 Yale Law Journal 409 (1982); M. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory , 70 Virginia Law Review 53 (1984); M. Scordato, Distinction Without a Difference , 68 North Carolina Law Review 1 (1989); O. Fiss, The Civil Rights Injunction 69-74 (Bloomington: Indiana University Press, 1978). The classics supporting the traditional hostility toward prior restraints are T. Emerson, The Doctrine of Prior Restraint , 20 Law and Contemporary Problems 648 (1955) and V. Blasi, Toward a Theory of Prior Restraint , 66 Minnesota Law Review 11 (1981).

3. Near v. Minnesota , 283 U.S. 697 (1931).

4. J. Milton, Areopagitica , in J. Patrick, ed., THE PROSE OF JOHN MILTON 326 (New York: New York University Press, 1968); F. Friendly, MINNESOTA RAG 13 (New York: Random House, 1981). The final quotation in the text is slightly modified; Friendly actually wrote "published by some Duluth religious nut."

5. Friendly, MINNESOTA RAG at 18-22.

6. Near , 283 U.S. at 704; Friendly, MINNESOTA RAG  at 49-50.

7. Near , 283 U.S. at 706; Friendly, MINNESOTA RAG at 26, 51-54; State ex rel. Olson v. Guilford , 174 Minn. 457, 219 N.W. 770 (1928); 179 Minn. 40, 228 N.W. 326 (1929). Guilford operated the Saturday Press with Near, but Guilford, "bored with the glacial pace of the litigation," eventually "sold his interest in the paper to Near (some say no cash changed hands)." Guilford was then severed from the case. Minnesota Rag at 60, 82.

8. Near , 283 U.S. at 719-20.

9. Id. at 712, 713.

10. Id. at 713.

11. Id. at 716, citing Z. Chafee, FREEDOM OF SPEECH 10 (New York: Harcourt, Brace and Howe, 1920); S. Godofsky, Protection of the Press continue

      from Prior Restraint and Harassment Under Libel Laws , 29 University of Miami Law Review 462, 471-72 (1975) (one of the Post's lawyers explaining their litigation strategy); E. Griswold, Teaching Alone Is Not Enough , 25 Journal of Legal Education 251, 258 (1973).

12. Nebraska Press Association v. Stuart , 427 U.S. 539, 567 (1976).

13. Barnett, Puzzle of Prior Restraint , was a discussion of Nebraska Press Association .

14. The agreement is reproduced in United States v. Marchetti , 466 F.2d 1309, 1312 n. 1 (4th Cir. 1972).

15. Snepp v. United States , 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby , 509 F.2d 1362 (4th Cir. 1975), cert. denied, 421 U.S. 992 (1975).

16. Washington Post , April 6, 1980; Freedman v. Maryland , 380 U.S. 51 (1965); V. Marchetti and J. Marks, THE CIA AND THE CULT OF INTELLIGENCE xxv, 14 (New York: Alfred A. Knopf, 1974). The initial CIA refusal to clear the quoted sentence came prior to Allende's assassination.

17. Alfred A. Knopf , 509 F.2d at 1369-70.

18. Near , 283 U.S. at 716.

19. L. Tribe, AMERICAN CONSTITUTIONAL LAW 1047 (Mineola, N.Y.: Foundation Press, 2d ed. 1988); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations , 413 U.S. 376, 390 (1973).

20. H. Kalven, Forward: Even When a Nation Is at War— , 85 Harvard Law Review 3, 32 (1971); D. Laycock, MODERN AMERICAN REMEDIES 363 (Boston: Little, Brown, 1985).

21. Bloom v. Illinois , 391 U.S. 194 (1968); Gompers v. Bucks Stove & Range Co ., 221 U.S. 418 (1911); D. Dobbs, HANDBOOK ON THE LAW OF REMEDIES 96-98 (Minneapolis: West Publishing, 1973); H. Monaghan, First Amendment "Due Process," 83 Harvard Law Review 518, 526-32 (1970); W. Mayton, Toward a Theory of First Amendment Process , 67 Cornell Law Review 245, 277 (1982).

22. Walker v. City of Birmingham , 388 U.S. 307, 321 (1967); Shuttlesworth v. City of Birmingham , 394 U.S. 147 (1969).

23. Carroll v. President and Commissioners of Princess Anne , 393 U.S. 175 (1968); Walker , 388 U.S. at 315, 318; Fiss, CIVIL RIGHTS INJUNCTION at 68-74; Barnett, Puzzle of Prior Restraint at 553-58; Jeffries, Rethinking Prior Restraint at 431-34; Redish, Proper Role of the Prior Restraint Doctrine at 93-99. Blasi is less sure that jettisoning the collateral bar rule would bring prior restraints and subsequent punishment sufficiently close together; he is treated in section IV of the chapter. Blasi, Toward a Theory of Prior Restraint at 35-38, 85-92.

24. Nebraska Press Association , 427 U.S. at 559; Emerson, Doctrine continue

      of Prior Restraint at 659; Blasi, Toward a Theory of Prior Restraint at 52-53; Mayton, Toward a Theory of First Amendment Process at 250-51; A. Bickel, THE MORALITY OF CONSENT 61 (New Haven, Conn.: Yale University Press, 1975).

25. Bickel, THE MORALITY OF CONSENT at 61.

26. H. Salisbury, WITHOUT FEAR OR FAVOR 290 (New York: Times Books, 1980); United States v. Progressive, Inc ., 467 F. Supp. 990 (W.D. Wis.), dismissed mem., 610 F.2d 819 (7th Cir. 1979). The Progressive case is more fully discussed in L. Powe, The H-Bomb Injunction , 61 University of Colorado Law Review 55 (1990).

27. E. Knoll, National Security: The Ultimate Threat to the First Amendment , 66 Minnesota Law Review 161 (1981); L. Hand, The Deficiency of Trials to Reach the Heart of the Matter , in 3 LECTURES ON LEGAL TOPICS 87, 105 (New York: Association of the Bar of the City of New York, 1926); J. Faulk, FEAR ON TRIAL (Austin: University of Texas Press, 1983).

28. Knoll, National Security at 161; H. Morland, THE SECRET THAT EXPLODED 176, 179, 204-06 (New York: Random House, 1981). Morland, the author of the Progressive story on the H-bomb, also notes the disappointment that the Camp David peace accords dwarfed the Progressive the evening the injunction was made final. Id. at 193.

29. United States v. Morison , 844 F.2d 1057 (4th Cir. 1988) cert. denied, 109 S. Ct. 259 (1988); L. Powe, Espionage, Leaks and the First Amendment , 42 Bulletin of the Atomic Scientists 8 (June/July 1986); Morison's exact sentence was four two-year terms to run concurrently; 10 News Media and the Law 3-6 (Summer 1986).

30. Barnett, Puzzle of Prior Restraint at 551; Blasi, Toward a Theory of Prior Restraint; Jeffries, Rethinking Prior Restraint; Schauer, Fear, Risk, and the First Amendment .

31. S. Ungar, THE PAPERS AND THE PAPERS 175-92 (New York: E. P. Dutton, 1972); Salisbury, WITHOUT FEAR OR FAVOR at 319; Judge Roger Robb in oral argument, quoted id. at 322.

32. Morland, SECRET THAT EXPLODED 197, 203. "Spring Berg" was undoubtedly Friedwardt Winterberg of Reno, who had published in British and German scientific journals, and who brought accurate diagrams published in New Solidarity to the Progressive's attention.

33. Morland, SECRET THAT EXPLODED at 183, 192, 194-96, 202-03, 223, 226-27; E. Teller, Hydrogen Bomb , 14 Encyclopedia Americana 654-56 (New York: Americana, 1979).

34. P. Wright, SPY CATCHER (New York: Viking, 1987); on the efforts of the Thatcher government to block publication, see M. Turnbull, THE SPY CATCHER TRAIL (London: Heinemann, 1988) ("I am very grateful to continue

      everyone who made the case possible and, in particular, to Peter Wright and Margaret Thatcher, without whose not dissimilar determination a thoroughly unmeritorious piece of litigation would never have seen the light of day"), and Note, The Spycatcher Cases , 50 Ohio State Law Journal 405, 409 (1989). Both the books are inconsistent, from covers to inside pages, as to whether they think spy catcher should be one or two words; I chose two words because that is how the title is pronounced, and that is the way the Tarlton Law Library at The University of Texas has catalogued the books. Morland, SECRET THAT EXPLODED at 202. H. Linde, Courts and Censorship , 66 Minnesota Law Review 171, 197 (1981).

35. Knoll, National Security at 168-69. The hint of stronger measures, however, is mine.

36. I heard Knoll make the remark at a conference at the University of Minnesota celebrating the fiftieth anniversary of Near , June 1981.

37. Hearings on H.R. 5613 before a Subcommittee of the Senate Committee on the Judiciary, 70th Cong., 1st sess. 75-76 (1928); see also E. Borchard, DECLARATORY JUDGMENTS 341-49 (Cleveland, Ohio: Banks-Baldwin Law Publishing, 1934) and 764-801 (2d ed. 1941).

38. Dombrowski v. Pfister , 380 U.S. 479 (1965); Younger v. Harris , 401 U.S. 37 (1971); Steffel v. Thompson , 415 U.S. 452 (1974); Doran v. Salem Inn , 422 U.S. 922 (1975) (preliminary relief available to protect the status quo); O. Fiss, Dombrowski , 86 Yale Law Journal 1103 (1977); D. Laycock, Federal Interference with State Prosecutions , 46 University of Chicago Law Review 636 (1979); H. MacGill and A. Soifer, The Younger Doctrine , 55 Texas Law Review 1141 (1977). Laycock's article makes clear that Dombrowski was misperceived as revolutionary and that it was in fact an essential, if accidental, step toward Younger .

39. Cohen v. California , 403 U.S. 15 (1971).

40. Blasi, Toward a Theory of Prior Restraint at 49-63.

41. Jeffries, Rethinking Prior Restraint at 427 n. 57; Redish, Proper Role of the Prior Restraint Doctrine at 67; Dennis v. United States , 341 U.S. 494 (1951).

42. Respondent's Brief at 2-3, Seattle Times v. Rhinehart , 467 U.S. 20 (1984) (No. 82-1721). A different analysis of the case may be found in R. Post, The Management of Speech: Discretion and Rights , 1984 Supreme Court Review 169.

43. Abrams, "The Pentagon Papers Case a Decade Later," New York Times Magazine , June 7, 1981, at 78; Morland, SECRET THAT EXPLODED at 144, 154, 178.

44. E.g., 2 News Media and the Law 38 (October 1978) (federal district judge orders NBC to inspect a copy of a television documentary scheduled to air that evening; overturned by appellate court five hours continue

      later), and 40 (Minnesota trial judge orders weekly newspaper not to publish an account of an open court hearing; state supreme court reverses a week later).

45. Morland, SECRET THAT EXPLODED at 165.

46. Powe, H-Bomb Injunction at 75.

47. Progressive, Inc ., 467 F. Supp. at 996; Morland, SECRET THAT EXPLODED at 154.

48. Morland, SECRET THAT EXPLODED at 41, 50, 153.

49. Speiser v. Randall , 357 U.S. 513 (1958).

50. Near , 283 U.S. at 720; Friendly, MINNESOTA RAG.

51. Morland, SECRET THAT EXPLODED at 154; Progressive, Inc ., 467 F. Supp. at 966.

52. Morland, SECRET THAT EXPLODED at 50, 153, 171-73.

53. Id. at 166, 197.

54. Id. at 140, 142, 146, 176; Blasi, Toward a Theory of Prior Restraint at 51.

1. Madison to W. T. Barry, August 4, 1822, in 9 THE WRITINGS OF JAMES MADISON at 103 (G. Hunt, ed.) (New York: Putnam's Sons, 1910).

2. Buckley v. Valeo , 424 U.S. 1, 14 (1976).

3. A. Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT at 75 (New York: Oxford University Press, 1948).

4. R. Woodward and C. Bernstein, ALL THE PRESIDENT'S MEN (New York: Simon and Shuster, 1974); New York Times , December 22, 1974, at A1; Chicago Sun-Times , April 26, 1981; Washington Post , January 8, 1982, at A1; Chicago Sun-Times , July 27, 1983; Washington Post , October 2, 1986, at A1.

5. T. Emerson, Colonial Intentions and Current Realities of the First Amendment , 125 University of Pennsylvania Law Review 737 (1977); Legal Foundations of the Right to Know , 1976 Washington University Law Quarterly 1; Houchins v. KQED , 438 U.S. 1, 32 (1978) (Stevens dissenting); Saxbe v. Washington Post , 417 U.S. 843, 862-68 (1974) (Powell dissenting).

6. 42 United States Code §§ 2014 (y) (1), 2274, 2277 (restricted data defined as design, manufacture, or utilization of atomic weapons); 50 United States Code § 421 (prohibits any person with authorized access to classified information from disclosing any information identifying a covert agent as part of a "pattern of activities intended to identify or expose covert action"); National Security Secrets and the Administration of Justice: Report of the Senate Select Committee on Intelligence, 95th Cong., 2d sess. 18 (1978); 108 Congressional Record 23140-41 (1962); Es- soft

      pionage Laws and Leaks: Hearings Before the Subcommittee on Legislation of the House Permanent Select Committee on Intelligence, 96th Cong., 1st sess. 146 (1979).

7. 18 United States Code § 641 (conversion); § 793 (unauthorized disclosure); § 794 (disclosure to foreign government).

8. Haig v. Agee , 453 U.S. 280 (1981).

9. L. Tribe, AMERICAN CONSTITUTIONAL LAW 965 (Mineola, N.Y.: Foundation Press, 2d ed. 1988).

10. Both "it would be the easy thing to do" and "it would be wrong" joined the political vocabulary thanks to Richard Nixon. His May 14, 1969, "Address to the Nation on Vietnam" stated in its third sentence: "I know that some believe that I should have ended the war immediately after inauguration by simply ordering our forces home from Vietnam." He followed with: "This would have been the easy thing to do. It might have been the popular thing to do. But . . ." PUBLIC PAPERS OF THE PRESIDENT OF THE UNITED STATES: RICHARD NIXON 365 (Washington, D. C.: Government Printing Office, 1971). "It would be wrong" is a Watergate statement found on the tapes. It was so prevalent that William Safire quipped that his "job in the Nixon administration was to turn out the lights after a meeting was over and call back into the darkened room, while unknown recorders still whirred, 'But it would be wrong!'" He twice used the story: New York Times , May 29, 1989, at 23 and New York Times , June 19, 1983, § 6 at 8.

11. Landmark Communications v. Virginia , 435 U.S. 829, 845 (1978); Florida Star v. B.J.F ., 109 S. Ct. 2603, 2609-12 (1989); Seattle Times v. Rhinehart , 467 U.S. 20 (1984).

12. "Government may not prohibit or punish publication of that information once it falls into the hands of the press, unless the need for secrecy is manifestly overwhelming." Landmark Communications , 435 U.S. at 849; 50 United States Code § 421.

13. M. Langley and L. Levine, Branzburg Revisited , 57 George Washington Law Review 13, 25-32 (1988); M. Linsky, IMPACT 169, 198 (New York: W. W. Norton, 1986).

14. Linsky, IMPACT at 197, 238-39.

15. Garland v. Torre , 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910 (1958).

16. Caldwell Affidavit at 17a; Branzburg v. Hayes , 408 U.S. 665 (1972) (No. 70-57).

17. Appendix at 3a-4a, Branzburg , 408 U.S. 665 (No. 70-85).

18. New York Times , December 14, 1969.

19. Caldwell Affidavit at 19a, Branzburg , 408 U.S. 665 (No. 70-57).

20. Department of Justice Memorandum No. 692 (September 2, 1970) quoted in Branzburg , 408 U.S. at 733 (dissent). break

21. Branzburg , 408 U.S. at 702.

22. Id. at 690-91.

23. Id. at 703-08.

24. Id. at 709-10.

25. Langley and Levine, Branzburg Revisited .

26. T. White, "Why the Jailing of Myron Farber 'Terrifies Me,'" New York Times Magazine , November 28, 1978, at 27; Linsky, IMPACT at 185-87; Morris, Eight Days in April , 17 Columbia Journalism Review 25 (Nov./Dec. 1978); New York Times , February 13, 1985, at A1.

27. E.g., Miller v. Transamerican Press, Inc ., 621 F.2d 721 (5th Cir. 1980).

28. D. Laycock, MODERN AMERICAN REMEDIES 652-56 (Boston: Little, Brown, 1985).

29. M. Farber, "SOMEONE IS LYING" (Garden City, N.Y.: Doubleday, 1982). There is a typo in the book that sets the Times 's fine at $ 286,ooo. Id. at 350.

30. Matter of Farber , 78 N.J. 259, 394 A.2d 330 (1978), cert. denied, 439 U.S. 997 (1978).

31. New York Times , August 6, 1978.

32. Farber, "SOMEONE IS LYING" at 270-7I, 283; Roviaro v. United States , 353 U.S. 53 (1957); Jencks v. United States , 353 U.S. 657 (1957); Alderman v. United States , 394 U.S. 165 (1969).

33. M. Langley and L. Levine, Broken Promises , 27 Columbia Journalism Review 21 (July/Aug. 1988).

34. Cohen v. Cowles Media Co ., No. 799806 (Minn. Dist. Ct. Hennepin County, June 19, 1988) reported in 14 Media Law Reporter at 1460 and National Law Journal , August 1, 1988, at 8, aff'd in part, 445 N.W. 2d 248 (Minn. Ct. App. 1989).

35. Cowles Media Co. v. Cohen , 457 N.W. 2d 199 (Minn. 1990).

36. A. Lewis, A Preferred Position for Journalism? 7 Hofstra Law Review 595, 618 (1979).

37. Pell v. Procunier , 417 U.S. 817 (1974); Saxbe , 417 U.S. 843; Houchins , 438 U.S. 1.

38. Gannett v. DePasquale , 443 U.S. 368, 375, 391-93 (1979).

39. Brief of Petitioner at Z9, Gannett (No. 77-1301); Appendix at 32a-51a, id.

40. Even after the guilty plea was entered, what transpired at the preliminary hearing has never come out; none of the opinions in the New York courts and none of the briefs filed with the cases states what the judge ruled or to what lesser included offenses the defendants pleaded guilty.

41. Gannett , 443 U.S. at 404-05.

42. D. O'Brien, THE PUBLIC'S RIGHT TO KNOW 135 (New York: Praeger, 1981). break

43. Stevenson v. Commonwealth , 218 Va. 462, 237 S.E.2d 779 (1977); Appendix at 34a, Richmond Newspapers v. Virginia , 448 U.S. 555 (No. 79-243), reproducing Richmond News Leader , May 31, 1978, at 59.

44. Richmond Newspapers , 448 U.S. at 559-61.

45. Brief of Appellant at 42 n. 37, Richmond Newspapers (No. 79-243). (The footnote also explains the difficulties, beyond simple audio problems, of getting the hearing transcript even after the tape recording of the trial was supposedly made available.)

46. Washington Post , September 17, 1979, at C1; New York Times , August 11, 1979, at 43; Richmond Newspapers .

47. Richmond Newspapers , 448 U.S. at 564-77.

48. W. Brennan, Address , 32 Rutgers Law Review 173 (1979); Richmond Newspapers , 448 U.S. at 587-88.

49. Richmond Newspapers , 448 U.S. at 582.

50. J. Goodale, "Gannett Is Burned by Richmond's First Amendment 'Sunshine Act,'" National Law Journal , September 29, 1980, at 24; White, "Jailing of Myron Farber." An excellent skeptical piece on the whole problem is L. BeVier, An Informed Public, an Informing Press , 68 California Law Review 482 (1980).

51. R. Woodward and S. Armstrong, THE BRETHERN (New York: Simon and Shuster, 1979).

52. Globe Enterprise v. Superior Court , 457 U.S. 596 (1982); Press Enterprises [I] v. Superior Court , 464 U.S. 501 (1984); Press Enterprises [II] v. Superior Court , 478 U.S. 1 (1986); Douglas Oil Co. v. Petrol Stops Northwest , 441 U.S. 211, 218, quoted in Press Enterprises II , 478 U.S. at 9.

53. Powell v. Alabama , 287 U.S. 45 (1932); Gideon v. Wainwright , 372 U.S. 335 (1963); W. Lockhart, Y. Kamisar, J. Choper, and S. Shiffrin, CONSTITUTIONAL LAW 845 (Minneapolis: West Publishing, 6th ed. 1986).

54. Richmond Newspapers , 448 U.S. at 577-78; A. Adler, LITIGATION UNDER THE FEDERAL FREEDOM OF INFORMATION ACT (Washington, D.C.: American Civil Liberties Union Foundation, 14th ed. 1989).

55. Betts v. Brady , 316 U.S. 455 (1942).

1. Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988); M. Yudof, Personal Speech and Government Expression , 38 Case Western Reserve Law Review 671 (1988).

2. A. Liebling, THE PRESS 32 (New York: Pantheon Books, 2d revised ed. 1981) (from his New Yorker column "The Wayward Press" of May 14, 1960). Eighty-two of the ninety-six "Wayward Press" columns from continue

      May 19, 1945, through April 13, 1963, were written by Liebling. When he died the New York Times , December 30, 1963, editorialized: "He was, by his own description, 'a chronic, incurable, recidivist reporter,' and his admiration for skill in reporting was boundless. His death stills a pen that could inspire as well as wound. The press will be duller for the loss of his barbs."

3. M. Emery and E. Emery, THE PRESS AND AMERICA 622-23 (Englewood Cliffs, N.J.: Prentice Hall, 6th ed. 1988) has 1676 as the total for 1986, down from a postwar high of 1785 in 1954; media analyst John Morton, in the Washington Journalism Review at 56 (April 1988), lists the current number of dailies at 1649.

4. Liebling, THE PRESS at 63, 66-67; B. Bagdikian, THE MEDIA MONOPOLY 72 (Boston: Beacon Press, 1983) and 69-70 (2d ed. 1987); A. Smith, GOODBYE GUTENBERG 45 (New York: Oxford University Press, 1980); B. Rucker, THE FIRST FEEDOM 22 (Carbondale: University of Southern Illinois Press, 1968); B. Compaine, C. Sterling, T. Guback, and J. Noble, WHO OWNS THE MEDIA 37 (White Plains, N.Y.: Knowledge Industry, 2d ed. 1982); Emery and Emery, THE PRESS AND AMERICA at 623.

5. Liebling, THE PRESS at 47-48.

6. Emery and Emery, THE PRESS AND AMERICA 627; Smith, Goodbye Gutenberg at 46.

7. Jerome Barron, Access to the Press—A New First Amendment Right , 80 Harvard Law Review 1641 (1967). Barron's ideas and influence will be discussed more fully in Chapters 8 and 9.

8. Bagdikian, MEDIA MONOPOLY at 8-21 (1st ed.) and 18-25 (2d ed.). The "Private Ministry of Information and Culture" is the title of Part 1 of the book.

9. Genessee Radio , 5 FCC 183 (1938).

10. 5 Federal Register 2382, 2384 (1940); 6 Federal Register 2282, 2284 (1941); United States v. Storer Broadcasting , 351 U.S. 192 (1956).

11. Multiple Ownership of Standard, FM and TV Broadcast Stations , 22 F.C.C. 2d 306, 310-11 (1970); Amendment of Multiple Ownership Rules , Pike and Fisher, 2 RADIO REGULATION 2d, at 1588, 1592 (1964); Second Report and Order , 50 F.C.C. 2d 1046 (1975), on reconsideration, 53 F.C.C. 2d 589 (1975). Of course, the FCC's looks at newspaper-broadcast ownership have not always been benign, as I discussed in Chapter 5 of AMERICAN BROADCASTING AND THE FIRST AMENDMENT (Berkeley and Los Angeles: University of California Press, 1987).

12. Second Report and Order , 50 F.C.C. 2d at 1079; D. Polsby, F.C.C. v. National Citizens Committee for Broadcasting and the Judicious Use of Administrative Discretion , 1978 Supreme Court Review 1, 8; Multiple continue

      Ownership , 100 F.C.C.2d 17, on reconsideration, 100 F.C.C.2d 74 (1984). No group owner may reach an audience in any one service exceeding 25 percent of the US population. At the time the commission adopted the cap, Metromedia had the largest reach at 23.89 percent.

13. National Citizens Committee for Broadcasting v. FCC , 555 F.2d 938, 966 (D.C. Cir. 1977).

14. FCC v. National Citizens Committee for Broadcasting [NCCB], 436 U.S. 775 (1978).

15. The quotation comes from the beginning case in the line, Schneider v. Town of lrvington , 308 U.S. 147, 163 (1939).

16. NCCB , 436 U.S. at 801.

17. Associated Press v. United States , 326 U.S. 1 (1945).

18. Z. Chafee, GOVERNMENT AND MASS COMMUNICATIONS 542-48 (Chicago: University of Chicago Press, 1947); M, Murphy, The United States v. the Associated Press , 1974 Montana Journalism Review 40-46. The Chicago Sun was defeated 684 to 247; the Washington Times-Herald , 514 to 242. Id. at 41.

19. Chafee, GOVERNMENT AND MASS COMMUNICATIONS at 549; D. Smith, ZECHARIAH CAFEE, JR. 97 (Cambridge, Mass.: Harvard University Press, 1986); Powe, American Broadcasting and the First Amendment at 68-74.

20. Smith, CHAFEE at 97. Chafee's written debate with Fred S. Siebert was published "in several major newspapers," but it was rejected by the likes of the New York Times , the New York Herald Tribune , and the Washington Post (id. at 96; Murphy, United States v. the Associated Press at 42). For historical reasons, antitrust litigation initiated by the Department of Justice was tried before three-judge district courts. The practice ceased in 1976.

21. Z. Chafee, FREE SPEECH IN THE UNITED STATES (Cambridge, Mass.: Harvard University Press, 1921).

22. United States v. Associated Press , 52 F. Supp. 362, 372 (S.D.N.Y. 1943).

23. Smith, CHAFEE at 98 (emphasis added) and 107 (quoting an exchange, whether oral or written is unclear, with ACLU attorney Morris Ernst); Chafee, GOVERNMENT AND MASS COMMUNICATIONS at 554; National Broadcasting Company v. United States , 319 U.S. 190 (1943), discussed in Powe, AMERICAN BROADCASTING AND THE FIRST AMENDMENT at 33-37.

24. Associated Press , 326 U.S. at 13, 20.

25. Chafee, Government and MASS COMMUNICATIONS at 563.

26. National Labor Relations Board v. Associated Press [NLRB v. AP] , 301 U.S. 103 (1937). The case was decided the same day as NLRB v . continue

      Jones and Laughlin Steel , 301 U.S. 1 (1937), and by the same five-to-four vote that established the constitutionality of the National Labor Relations Act under the commerce clause in that case. Furthermore, the four dissenters—Sutherland, Van Devanter, Butler, and McReynolds (the Four Horsemen of Reaction)—had also been the dissenters in Near; so taking their First Amendment dissent in NLRB v. AP seriously is all but impossible. Nevertheless, if one imagines the dissent to be written by a Douglas instead of by Sutherland, there is in fact a real power to the opinion that is too easy to overlook. Forty years later the Court took a parallel argument very seriously in the context of NLRB jurisdiction over lay teachers at parochial schools. NLRB v. Catholic Bishop of Chicago , 440 U.S. 490 (1979) (without a clear expression of congressional intent, NLRB held to lack jurisdiction). F. Siebert, My Experiences with the First Amendment , 56 Journalism Quarterly 446, 449 (1979).

27. M. Ernst, THE FIRST FREEDOM 250-52 (New York: Macmillan, 1946); P. Hart, The Congressional Perspective of Competition in the Communications Industries , 13 Antitrust Bulletin 973, 977 (1968); Bagdikian, MEDIA MONOPOLY ch. 13, "To Undo Excess."

28. J. Morton, "The Business of Journalism: Second Papers Don't Flourish," Washington Journalism Review , September 1989, at 6. Freedom of Expression: Hearings before the Committee on Commerce, Science and Transportation, U.S. Senate, 97th Cong., 2d sess., serial 97-139, at 141 (1982).

29. B. Owen, ECONOMICS AND FREEDOM OF EXPRESSION 52-53 (Cambridge, Mass.: Ballinger, 1975).

30. The best of the articles in the field is K. Roberts, Antitrust Problems in the Newspaper Industry , 81 Harvard Law Review 319 (1968), which also cites many of the extensive congressional hearings in the area.

31. S. Lacy, Content of Joint Operation Newspapers , in R. Picard, J. Winter, M. McCombs, and S. Lacy, eds., Press Concentration and Monopoly 147-50 (Norwood, N.J.: Ablex, 1988); D. Coulson, Antitrust Law and Newspapers , in id. at 179-80.

32. Roberts, Antitrust Problems in the Newspaper Industry at 341; Arthur Hanson in Hearings on the Concentration of Ownership in the News Media before the Subcommittee on Antitrust of the House Committee on the Judiciary, 88th Cong., 1st sess. 260 (1963).

33. United States v. Times Mirror Co ., 274 F. Supp. 606 (C.D. Cal. 1967), affirmed, 390 U.S. 712 (1968). For those for whom the distinction matters, the holding was based on § 7 of the Clayton Act rather than on the Sherman Act. J. Morton, "Media Control: What If . . . ," Washington Journalism Review , April 1988, at 56.

34. Citizen Publishing Co. v. United States , 394 U.S. 131 (1969). break

35. Newspaper Preservation Act, 15 United States Code §§ 1801-04 (1970). A number of discussions of the NPA are included in the excellent bibliography in Picard et al., PRESS CONCENTRATION AND MONOPOLY.

36. D. Holder, "Joint Operating Agreements: If You Can't Beat 'Em, Join 'Em," Washington Journalism Review , November 1981, at 20, 22 (quoting Teeter); S. Barnett, "Court Review to Affect Newspaper Industry Structure," Legal Times of Washington , November 15, 1982, at 15; Coulson, Antitrust Law and Newspapers at 188-89.

37. Morton, "Business of Journalism"; Committee for an Independent P-I v. Hearst Corp ., 704 F.2d 467 (9th Cir. 1983) cert. denied, 464 U.S. 892 (1983); A. Carlson, The Newspaper Preservation Act: The Seattle Application , 1982 University of Illinois Law Review 669.

38. S. Barnett, Monopoly Games—Where Failures Win Big , 19 Columbia Journalism Review 40 (1980); S. Barnett, Detroit's High-Stakes "Failure" Game, 27 Columbia Journalism Review 40 (1988); Michigan Citizens v. Thomburgh , affirmed by an equally divided Court, 110 S. Ct. 398 (1989); New York Times , November 14, 1989, at 29.

39. Lacy, Content of Joint Operation Agreements at 148-49; J. Morton, "The Miami News' Profitable Death," Washington Journalism Review , December 1988, at 46.

40. W. Niebauer, Effects of the Newspaper Preservation Act on the Suburban Press , 5 Newspaper Research Journal 41—49 (1984); Lacy, Content of Joint Operation Agreements at 151—52; Coulson, Antitrust Law and Newspapers at 187—90.

41. S. Barnett, "Regulating Newspapers: Novel Problems for Justice," Legal Times of Washington , September 1, 1980, at 11, 15.

42. Emery and Emery, THE PRESS AND AMERICA at 627-30; C. Mahaffie. Mergers and Diversification in the Newspaper, Broadcasting and Information Industries , 13 Antitrust Bulletin 927, 931 (1968).

43. Mahaffie, Mergers , at 932.

44. Coulson, Antitrust Law and Newspapers at 195 (although he believes that "imaginative application" of the antitrust laws could be successful).

45. Record at 43, Grosjean v. American Press , 297 U.S. 233 (1936).

46. Grosjean , 297 U.S. at 246—51. If there were no Fourteenth Amendment, the Court might have determined that the "republican form of government" clause of Article IV of the Constitution was judicially enforceable; but the point remains that if the federal courts could not act, Louisiana or any other state might be reduced to state-controlled information.

47. Giragi v. Moore , 301 U.S. 670 (1937). break

48. Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue , 460 U.S. 575 (1983).

49. Id. at 591—92.

50. Id. at 587 and 602 (dissent).

51. Id. at 588.

52. The exact language is printed only in the 1194-page Making Further Continuing Appropriations for the Fiscal Year ending September 30, 1988, H.R. Report no. 498, 100th Cong., 1st sess. 34 (1987).

53. News America Publishing, Inc. v. FCC , 844 F.2d 800, 814, 810 (D.C. Cir. 1988) (quoting Arkansas Writers' Prefect v. Ragland , 481 U.S. 221 (1987), a case invalidating a tax scheme that exempted newspapers and "religious, professional, trade and sports journals," but not other types of publications).

54. Coulson, Antitrust Law and Newspapers at 180; R. Leigh, ed., A FREE AND RESPONSIBLE PRESS 80 (Chicago: University of Chicago Press, 1947).

55. Chafee, GOVERNMENT AND MASS COMMUNICATIONS at 537; Ernst, THE FIRST FREEDOM at 249-53.

56. Chafee, GOVERNMENT AND MASS COMMUNICATIONS at 594; Smith, CHAFEE at 107; Media Ownership: Diversity and Concentrations: Hearings before the Subcommittee on Communications of the Senate Committee on Commerce, Science and Transportation, 101st Cong., 1st sess., no. 101-357, at 86-89 (1989).

57. Beauharnais v. Illinois , 343 U.S. 250, 286 (1952) (dissenting opinion).

58. Bagdikian, MEDIA MONOPOLY at 225-26.

59. C. Baker, HUMAN LIBERTY AND FREEDOM OF SPEECH 266-70 (New York: Oxford University Press, 1989).

1. "Fly Blasts Nets," Broadcasting Magazine , May 19, 1941; M. Blanchard, THE HUTCHINS COMMISSION, THE PRESS AND THE RESPONSIBILITY CONCEPT, Journalism Monographs no. 49, at 9, 11 (Lexington: University of Kentucky Press, 1977). This is an appropriate place to correct a typo in my AMERICAN BROADCASTING AND THE FIRST AMENDMENT at 69. In stating the opposition of the press to FDR, I had intended to use his figure of 75 percent; I never caught the "95 percent" until after the paperback edition appeared.

2. E. Purcell, THE CRISIS OF DEMOCRATIC THEORY (Lexington: University of Kentucky Press, 1973). The third member who did not make Purcell was Robert Redfield, an anthropologist who was dean of social sciences at Chicago. By 1947, when the commission report was issued, continue

      Lasswell was on the Yale Law School faculty. Luce was true to his commitment to keep his hands off and even refrained from public comment on a final product he found disappointing. H. Ashmore, UNSEASONABLE TRUTHS 294 (Boston: Little, Brown, 1989).

3. R. Leigh, ed., A FREE AND RESPONSIBLE PRESS 9 (Chicago: University of Chicago Press, 1947); Ashmore, Unseasonable Truths at 294.

4. Leigh, A FREE AND RESPONSIBLE PRESS at 18, 128, 90-96.

5. Id. at viii; A. Liebling, Book Review, The Nation , April 12, 1947, at 427. The report underwhelmed Liebling, as his characteristically humorous review demonstrates. The reaction to the report is discussed in Blanchard, HUTCHINS COMMISSION at 29-50.

6. Abrams v. United States , 250 U.S. 616, 630 (1919) (dissent).

7. J. Milton, Areopagitica , in J. Patrick, ed., The Prose of John Milton 327 (New York: New York University Press, 1968); Whitney v. California , 274 U.S. 357, 376 (1927) (concurring); New York Times v. Sullivan , 376 U.S. 254, 269, 279 n. 19 (1964); J. Mill, ON LIBERTY 15 (Oxford: Blackwell, 1947).

8. A. Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (New York: Oxford University Press, 1948). As I note in Chapter 6, this theory is somewhat overdrawn.

9. Vincent Blasi's seminal The Checking Value in First Amendment Theory , 1977 American Bar Foundation Research Journal 521, is the modern genesis of "checking."

10. Whitney , 274 U.S. at 376; C. Baker, HUMAN LIBERTY AND FREEDOM OF SPEECH (New York: Oxford University Press, 1989).

11. F. Schauer, FREE SPEECH: A PHILOSOPHICAL INQUIRY (Cambridge: Cambridge University Press, 1982) provides the best critique of the various theories although, quite naturally, supporters of any one of the theories are quite able to critique the others.

12. T. Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION (New York: Random House, 1970); L. Powe, Scholarship and Markets , 56 George Washington Law Review 172, 179 (1987); S. Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment , 78 Northwestern University Law Review 1212 (1983); M. Yudof, WHEN GOVERNMENT SPEAKS (Berkeley and Los Angeles: University of California Press, 1983).

13. Baker, HUMAN LIBERTY AND FREEDOM OF SPEECH at 253-55, is that rare exception who see aspects of freedom of the press in liberty terms (albeit because he sees all First Amendment issues in liberty terms); W. Hocking, FREEDOM OF THE PRESS 169 (Chicago: University of Chicago Press, 1947). break

14. T. Bethell and C. Peters, "The Imperial Press," Washington Monthly , November, 1976, at 29.

15. C. Whalen, YOUR RIGHT TO KNOW at x (New York: Random House, 1973); Branzburg v. Hayes , 408 U.S. 665, 721 (1972) (dissenting).

16. K. Cooper, THE RIGHT TO KNOW at iv (New York: Farrar, Straus and Cudahy, 1956); J. Merrill, IS THERE A RIGHT TO KNOW? Freedom of Information Center Publication no. 002 (Columbia, Mo.: Freedom of Information Center, 1967); J. Merrill, The "People's Right to Know" Myth , 45 New York State Bar Journal 461 (1973).

17. Jones v. Opelika , 316 U.S. 584, 608 (1942) (Chief Justice Stone dissenting), adopted as the opinion of the court on rehearing, 319 U.S. 103 (1943) (per curiam). A quick but hostile history of the preferred position is provided in Justice Frankfurter's concurring opinion in Kovacs v. Cooper , 336 U.S. 77, 89 (1949); P. Stewart, "Or of the Press," 25 Hastings Law Journal 631 (1975); F. Abrams, The Press Is Different , 7 Hofstra Law Review 563 (1979); M. Nimmer, Introduction—Is Freedom of the Press a Redundancy? , 25 Hastings Law Journal 639 (1975).

18. The questions from the bench and Tribe's answers are from Anthony Lewis's notes of oral argument. A. Lewis, A Public Right to Know about Public Institutions , 1980 Supreme Court Review 1, 19; First National Bank of Boston v. Bellotti , 435 U.S. 765, 795-802 (1978) (concurring). Burger's concluding sentence reads: "In short, the First Amendment does not 'belong' to any definable category of persons or entities: It belongs to all who exercise its freedoms."

19. H. Kalven, The New York Times Case , 1964 Supreme Court Review 191, 221 n. 125; J. Barron, Access to the Media—A New First Amendment Right , 81 Harvard Law Review 1641 (1967); J. Barron, In Defense of Fairness: A First Amendment Rationale for Broadcasting's "Fairness" Doctrine , 37 University of Colorado Law Review 31 (1964); J. Barron, The Federal Communications Commission's Fairness Doctrine , 30 George Washington Law Review 1 (1961).

20. A. Director, The Parity of the Economic Marketplace , 7 Journal of Law and Economics 1 (1964).

21. M. Tushnet, Corporations and Free Speech , in D. Kairys, ed., THE POLITICS OF LAW at 253, 257 (New York: Pantheon Books, 1982).

22. Red Lion Broadcasting v. FCC , 395 U.S. 367 (1969).

23. Id. at 390.

24. New York Times v. Sullivan , 376 U.S. at 270; Meiklejohn, FREE SPEECH at 24-28.

25. Red Lion Broadcasting , 395 U.S. at 390.

26. CBS v. Democratic National Committee , 412 U.S. 94 (1973). break

27. Business Executives' Move for Vietnam Peace v. FCC , 450 F.2d 642, 655 (D.C. Cir. 1971).

28. CBS v. DNC , 412 U.S. at 102, 122.

29. Miami Herald v. Tornillo , 418 U.S. 241 (1974); Powe, Scholarship and Markets at 178-80.

30. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council , 425 U.S. 748 (1976).

31. Buckley v. Valeo , 424 U.S. 1, 19 (1976); First National Bank of Boston v. Bellotti , 435 U.S. 765 (1978).

32. J. Wright, Money and the Pollution of Politics , 82 Columbia Law Review 609, 637 (1982). The statement in text that wealth, not talent is the ticket to the public's ear is not accurate. It is not wealth per se, but some level of affluence combined with the conclusion that economic selfinterest requires spending, that brings money into the political marketplace. L. Powe, Mass Speech and the Newer first Amendment , 1982 Supreme Court Review 243, 265. For simplification (and therefore with distortion) I have accepted the terms of debate as the rich versus us.

33. S. Levinson, Regulating Campaign Activity , 83 Michigan Law Review 939, 945 (1985).

34. C. Lindblom, POLITICS AND MARKETS (New York: Basic Books, 1977); O. Fiss, Why the State? 100 Harvard Law Review 781, 785-88 (1987); O. Fiss, Free Speech and Social Structure , 71 Iowa Law Review 1405 (1986).

35. J. Lichtenberg, Foundations and Limits of Freedom of the Press , 16 Philosophy and Public Affairs 329 (1987).

36. Id. at 329-30.

37. Yudof, WHEN GOVERNMENT SPEAKS; Schauer, FREE SPEECH; Shiffrin. First Amendment and Economic Regulation; Powe, Scholarship and Markets .

38. Lichtenberg, Foundations and Limits at 330 n. 3.

39. R. Nagel, CONSTITUTIONAL CULTURES 4 (Berkeley and Los Angeles: University of California Press, 1989); 67 Congressional Record 12352 (1926).

40. Fiss, Why the State? at 786-87.

41. S. Ingber, The First Amendment in Modern Garb: Retaining System Legitimacy—A Review Essay of Lucas Powe's American Broadcasting and the First Amendment , 56 George Washington Law Review 187, 204 (1987); Frank v. Mangum , 237 U.S. 309, 349 (dissenting).

42. T. Scanlan, Freedom of Expression and Categories of Expression , 40 University of Pittsburgh Law Review 519, 534 (1979); POWE, AMERICAN BROADCASTING AND THE FIRST AMENDMENT at 121-41; T. Emerson, continue

      TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 16-25 (New York: Vintage Books, 1966).

43. W. Van Alstyne, The Hazards to the Press of Claiming a "Preferred Position," 28 Hastings Law Journal 761 (1977); W. Van Alstyne, The First Amendment and the Free Press , 9 Hofstra Law Review 1 (1980); L. BeVier, An Informed Public, an Informing Press , 68 California Law Review 482 (1980); A. Lewis, A Preferred Position for Journalism? 7 Hofstra Law Review 595 (1979); Lewis, Public Right to Know .

44. Van Alstyne, The First Amendment and the Free Press at 19; R. Bork, "The First Amendment Does Not Give Greater Freedom to the Press than to Speech," Center Magazine , March/April 1979, at 28, 34.

45. Hocking, FREEDOM OF THE PRESS at 170-71.

46. New York Times v. United States , 403 U.S. 713, 750 (1971) (dissenting); H. Salisbury, Without Fear or Favor 540-45 (New York: Times Books, 1980).

47. Richmond Newspapers v. Virginia , 448 U.S. 555, 573 (1980).

48. Branzburg , 408 U.S. at 707.

49. Bork, "First Amendment" at 34; United States Postal Service v. Greenburgh Civic Association , 453 U.S. 114 (1981).

1. Jacobellis v. Ohio , 378 U.S. 184, 197—98 (1964).

2. P. Stewart, "Or of the Press," 26 Hastings Law Journal 631, 633-34 (1975).

3. Miami Herald v. Tornillo , 418 U.S. 241 (1974). Tornillo is pronounced tor-nil-lo (not tor-nee-yo). The remainder of this chapter is condensed from my article Tornillo , 1987 Supreme Court Review 345, which has both additional information and more extensive footnoting.

4. T. Clark, THE SOUTHERN COUNTRY EDITOR 283 (Indianapolis: Bobbs Merrill, 1948).

5. Clark,THE SOUTHERN COUNTRY EDITOR at 295-96; J. Dovell, 2 florida 711-12 (New York: Lewis Historical Publishing, 1952), quoting 1907 Message to the Legislature from the House Journal at 70; T. Hoffer and G. Butterfield, The Right to Reply , 53 Journalism Quarterly 111, 112 (1976).

6. Hoffer and Butterfield, Right to Reply at 113-14.

7. Miami Herald , October 22, 1965; November 22, 1965; March 2, 1966; June 28, 1966; July 14-17, 1967.

8. Powe, Tornillo at 352-56.

9. Reynolds v. Sims , 377 U.S. 533 (1964); C. Tebeau, A HISTORY OF FLORIDA 449 (Coral Gables: University of Miami Press, 1971). break

10. Miami Herald , September 9, 1970; September 30, 1970.

11. Miami Herald , July 12, 1972.

12. Miami Herald , September 13, 1972.

13. The full text of the editorial (Miami Herald , September 20, 1972) reads:

The State's Laws and Pat Tornillo

LOOK who's upholding the law!

Pat Tornillo, boss of the Classroom Teachers Association and candidate for the State Legislature in the Oct. 3 runoff election, has denounced his opponent as lacking "the knowledge to be a legislator, as evidenced by his failure to file a list of contributions to and expenditures of his campaign as required by law.

Czar Tornillo calls "violation of this law inexcusable."

This is the same Pat Tomillo who led the CTA strike from February 19 to March 11, 1968, against the school children and taxpayers of Dade County. Call it whatever you will, it was an illegal act against the public interest and clearly prohibited by the statutes.

We cannot say it would be illegal but certainly it would be inexcusable of the voters if they sent Pat Tornillo to Tallahassee to occupy the seat for District 103 in the House of Representatives.

14. The full text of the second editorial ( Miami Herald , September 29, 1972) reads:

See Pat Run

FROM the people who brought you this—the teacher strike of '68—come now instructions on how to vote for responsible government, i.e., against Crutcher Harrison and Ethel Beckham, for Pat Tornillo. The tracts and blurbs and bumper stickers pile up daily in teachers' school mailboxes amidst continuing pouts that the School Board should be delivering all this at your expense. The screeds say the strike is not an issue. We say maybe it wouldn't be were it not a part of a continuation of disregard of any and all laws the CTA might find aggravating. Whether in defiance of zoning laws at CTA Towers, contracts and laws during the strike, or more recently state prohibitions against soliciting campaign funds amongst teachers, CTA says fie and try and sue us—what's good for CTA is good for CTA and that is natural law. Tornillo's law, maybe. For years now he has been kicking the public shin to call attention to his shakedown statesmanship. He and whichever acerbic prexy is in alleged office have always felt their private ventures so chock-full of public weal that we should leap at the chance to nab the tab, be it half the Glorious Leader's salary or the dues checkoff or anything else except perhaps mileage on the staff hydrofoil. Give him public office, says Pat, and he will no doubt live by the Golden Rule. Our translation reads that as more gold and more rule.

15. State v. News-Journal Corp ., 36 Fla. Supp. 164 (Cir. Ct. Volusia County 1972).

16. Miami Herald , October 4, 1972; Miami News , September 11, 1972, at 3oA; October 2, 1972, at 30A. The Herald's circulation was continue

      354,408, while that of the News was only 78,119. EDITOR AND PUBLISHER YEARBOOK 61, 62 (New York: Editor and Publisher, 1973).

17. Miami Herald , October 5, 1972; October 7, 1972. Tornillo signed the letter: "Pat 'Boss' Tornillo."

18. Tornillo v. Miami Herald , 38 Fla. Supp. 80 (Cir. Ct. Dade County 1972).

19. J. Barron, FREEDOM OF THE PRESS FOR WHOM? (Bloomington: Indiana University Press, 1973); Access to the Press—A New First Amendment Right , 80 Harvard Law Review 1641 (1967); An Emerging First Amendment Right of Access to the Media? 37 George Washington Law Review 487 (1969); Access—The Only Choice for the Media? 48 Texas Law Review 766 (1970); Red Lion Broadcasting v. FCC , 395 U.S. 367 (1969).

20. R. Fisher, And Who Will Take Care of the Damrons? in The Trial of the First Amendment at 16 (Columbia, Mo.: Freedom of Information Center, 1975). This little pamphlet was commissioned by Knight-Ridder, owner of the Herald , for a pretty tidy sum.

21. Tornillo v. Miami Herald , 287 So. 2d 78 (Fla. 1973).

22. Id. at 81-83.

23. Id. at 82, 83, 84 (emphasis in original).

24. Id. at 91.

25. South Dade News-Leader , July 25, 1973; Simon to Paul Brookshire (editor of South Dade News-Leader) , August 9, 1973.

26. Simon to Cranberg, January 8, 1974, at 3.

27. Fisher, Who Will Take Care? at 13.

28. Tornillo , 418 U.S. at 248, 253.

29. Id. at 250, quoting the Hutchins Commission report at 4.

30. Id. at 256-58.

31. Id. at 257.

32. V. Blasi, The Checking Value in First Amendment Theory , 1977 American Bar Foundation Research Journal 521.

33. Simon told Tornillo of the newspapers' filings, listed them by name, and then wrote: "Do you realize the amount of attorney's fees you are generating? This is unquestionably contributing to the enormous inflation overtaking the United States." Simon to Tornillo, August 14, 1973. Brief of The Citrus County Chronicle as Amicus Curiae at 2; Brief of The Islander as Amicus Curiae at 2.

34. L. Bollinger, Freedom of the Press and Public Access , 75 Michigan Law Review 1, 31 (1976); L. Tribe, AMERICAN CONSTITUTIONAL LAW 1002 (Mineola, N.Y: Foundation Press, 2d ed. 1988).

35. E. Hynds, AMERICAN NEWSPAPERS IN THE 1970s, at 17 (New York: Hasting House, 1975), states that advertising constitutes 40 to 75 continue

      percent of a paper. I have never heard anyone previously place the figure below 60 percent. According to the standard media text, E. Emery and M. Emery, THE PRESS AND AMERICA 233 (Englewood Cliffs, N.J.: Prentice-Hall, 4th ed. 1978), advertising space reached 50 percent by World War I. Regardless of the exact amount of advertising space, a newspaper cannot just print everything. The amount of advertising sets a limit on the amount of news that will be printed.

36. B. Schmidt, FREEDOM OF THE PRESS VS PUBLIC ACCESS 233 (New York: Praeger, 1976); F. Abrams, In Defense of Tornillo , 86 Yale Law Journal 361 (1976).

37. United States v. Morison , 844 F. 2d 1057 (4th Cir. 1988) cert. denied, 109 S. Ct. 259 (1988); Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations , 413 U.S. 376 (1973).

38. A typical "abuse" clause reads as follows: "No law shall be passed to curtail, or restrain the liberty of speech, or of the press, and any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty." GEORGIA CONSTITUTION art. I, § 1, para. 5. Forty-two states have similar provisions.

39. 17 Congressional Record 43163-64 (1971); Senate Conference Report 92-580. The statute was sustained in CBS v. FCC (Carter-Mondale) , 453 U.S. 367 (1981).

40. New York Times , March 12, 1974, at 17; Washington Post , March 13, 1974, at 26 (editorial); Reflections on the Tornillo Case , in J. Barron, PUBLIC RIGHTS AND THE PRIVATE PRESS 1, 2 (Toronto: Butterworths, 1981).

41. Tribe, AMERICAN CONSTITUTIONAL LAW at 700; see also Bollinger, Freedom of the Press and Public Access at 31. Blasi sees this as an important symbolic value because even if press regulation has "limited material impact," it nevertheless tarnishes the image of a totally free press ( Checking Value at 624; but see id. at 628, quoted in text at note 45 below).

42. When I presented this at a faculty colloquium, my colleagues understood that my four-part test was facetious, but several told me they thought it was nevertheless sound. Therefore, let me briefly explain its flaws. (1) It is probably impossible to find an equivalent to a daily newspaper, given their scarcity and probable market dominance. Thus the first part of the test is likely either to be always satisfied or to provide an interesting discussion of how many radio stations equal a newspaper. (2) What does "reading public" mean? How is it different from the public? Does "generally available" have any different content from "alternative equivalent media outlet"? (3) This sounds nice, but still it is a mechanism continue

      that could be abused. (4) The requirement is conclusory and assumes, as discussed, that reading the reply is of more benefit to the public than whatever story is omitted to make room for the reply.

43. Schmidt, FREEDOM OF THE PRESS at 231. Alexander Bickel decried a story of faculty members debating with students over whether to burn an ROTC building. "The matter was ultimately voted upon, and the affirmative lost—narrowly. But the negative taken by the faculty was only one side of a debate which the faculty rendered legitimate by engaging in it. Where nothing is unspeakable, nothing is undoable." A. Bickel, THE MORALITY OF CONSENT 73 (New Haven, Conn.: Yale University Press, 1975).

44. Boyd v. United States , 116 U.S. 616 (1886); Olmstead v. United States , 277 U.S. 438, 474 (1927) (dissenting).

45. Blasi, Checking Value at 628.

46. West Virginia v. Barnette , 319 U.S. 624, 641 (1943).

47. New York Times v. United States , 403 U.S. 713, 717 (1971).

48. New York Times , September 21, 1970, at 42; Jim Hampton (editor of the Herald ) to author, June 15, 1987: "I've opened our Op-Ed Page far more than in Shoemaker's day. Nothing to do with Tornillo; just my own recognition that, as the only real game in town, we have an obligation to provide an accessible soapbox for those of opposing views. We give priority in our Reader's Forum to letters opposing us, for the same reason." The Herald does not have an ombudsman. E. Hynds, AMERICAN NEWSPAPERS IN THE 1980s, at 294-95 (New York: Hasting House, 1980); D. Shaw, JOURNALISM TODAY chap. 6 (New York: Harper's College Press, 1977); C. Tate, What Do Ombudsmen Do? 23 Columbia Journalism Review 37 (1984).

49. One ambitious project, announced with much fanfare in the Columbia Journalism Review , was a National News Council. It was proposed by the Twentieth Century Fund as "an independent forum for public and press discussion of important issues affecting the flow of information." 11 Columbia Journalism Review at 44 (1973). With foundation funding, its goal was "to receive, to examine, and to report on complaints concerning the accuracy and fairness of news reporting," thereby increasing public trust in journalism by assessing complaints about the work of major news organizations. Id. at 43. The Columbia Journalism Review reported the council's decisions, but many newspapers refused to cooperate, others cooperated tepidly, and the New York Times was vigorously opposed to the council. New York Times , March 21, 1984, at 19. The Council eventually wound up so moribund that its death went unnoticed in the Columbia Journalism Review . P. Brogan, SPIKED: continue

      THE SHORT LIFE AND DEATH OF THE NATIONAL NEWS COUNCIL (New York: Priority Press, 1985).

50. Editor and Publisher , May 3, 1975, at 40.

1. T. Bethell and C. Peters, "The Imperial Press," Washington Monthly , November 1976, at 28, 29.

2. M. Shapiro, Libel Regulatory Analysis , 74 California Law Review 883 (1986); O. Fiss, Why the State? 100 Harvard Law Review 781 (1987).

3. J. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment , 1990 Duke Law Journal 375, 376; O. Fiss, The Fate of an Idea Whose Time Has Come , 41 University of Chicago Law Review 742 (1974); O. Fiss, Groups and the Equal Protection Clause , 5 Philosophy and Public Affairs 107 (1976); O. Fiss, The Forms of Justice , 93 Harvard Law Review 1 (1979); S. Ingber, The First Amendment in Modern Garb: Retaining System Legitimacy—A Review Essay of Lucas Powe's American Broadcasting and the First Amendment , 56 George Washington Law Review 187, 204 (1987).

4. K. Arrow, SOCIAL CHOICE AND INDIVIDUAL VALUES (New York: Wiley and Sons, 2d ed. 1963); D. Mueller, PUBLIC CHOICE (Cambridge: Cambridge University Press, 1979). In colloquial form, Arrow's Theorem demonstrates that inconsistency and instability are inherent in group decision making, an idea informally captured in the folk saying that a camel is a horse designed by a committee. In simplified, but more technical, form, Arrow's Theorem demonstrates that no conceivable voting system can enable one to move from (a) the individual ordinal preference rankings of three or more options by three or more voters to (b) a social ranking of the options in question, without violating one or more of the plausible criteria of rationality that the theorem delineates.

5. B. Bagdikian, THE MEDIA MONOPOLY 101-02 (Boston: Beacon Press, 1983).

6. United States v. Associated Press , 52 F. Supp. 362, 372 (S.D.N.Y. 1943).

7. L. Powe, AMERICAN BROADCASTING AND THE FIRST AMENDMENT (Berkeley and Los Angeles: University of California Press, 1987); L. Powe, Scholarship and Markets , 56 George Washington Law Review 171, 184-86 (1987).

8. Plessy v. Fergusson , 163 U.S. 537 (1896); R. Bork, THE TEMPTING OF AMERICA (New York: Free Press, 1989); R. Nagel, CONSTITUTIONAL CULTURES (Berkeley and Los Angeles: University of California Press, 1989). break

9. J. Persico, EDWARD R. MURROW 377-80 (New York: McGraw-Hill Publishing Co., 1988); AMERICAN BROADCASTING AND THE FIRST AMENDMENT 138-41.

10. Scott v. Sandford , 60 U.S. (19 How.) 393 (1857). Boston Globe , August 31, 1989, at 1, discussing William Hammond, THE MILITARY AND THE MEDIA, 1962-68: THE US ARMY IN VIETNAM (Washington, D.C.: Center for Military History, 1988).

11. R. Leigh, ed., A FREEE AND RESPONSIBLE PRESS 80 (Chicago: University of Chicago Press, 1947); New York Times , November 6, 1963, at 1; Washington Post , May 20, 1971, at A18.

12. West Virginia v. Barnette , 319 U.S. 624, 638 (1943).

13. T. Wilder, THE SKIN OF OUR TEETH: PLAY IN THREE ACTS 139 (New York: Harper and Bros., 1942). break