Vol. 2 No. 7 (July, 1992) pp. 102-104

THE FOURTH ESTATE AND THE CONSTITUTION: FREEDOM OF THE PRESS IN AMERICA by Lucas A. Powe, Jr. Berkeley: University of California Press, 1991. 357 pp.

TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM by Mark A. Graber. Berkeley: University of California Press, 1991. 336 pp.

Reviewed by Elliot E. Slotnick, Department of Political Science, The Ohio State University.

Since the second decade of the twentieth century, when First Amendment litigation became a serious constitutional concern, numerous analysts have bemoaned the state of doctrinal and/or theoretical development in various facets of the First Amendment domain. Two recent books published by the University of California Press add contemporary critical voices to this literature while calling for significant, indeed dramatic, reform. Powe's THE FOURTH ESTATE AND THE CONSTITUTION is largely substantive in orientation and narrowly focused in scope on issues concerning the freedom of the press. Much more theoretical and sweeping in orientation, Graber's TRANSFORMING FREE SPEECH can be characterized as an exercise in paradigm recognition, debunking, and redevelopment.

Powe's volume takes as its starting point the case of NEW YORK TIMES V. SULLIVAN (1964), the beginning of "modern" constitutional law on freedom of the press. Nevertheless, the book has a predominantly historical bent, focusing exclusively on constitutional (not statutory) development in media law. There is a good deal of "story telling" in the volume and the history of press freedom in America, revealed through numerous in-depth case studies of litigation, well demonstrates that "progress" in press rights has not necessarily been the operative rule.

The opening section of Powe's book explores the historical traditions of American press freedom, examining early state practices and the Constitution's framing period. Powe is appropriately skeptical of evolutionary theories of rights and, indeed, he takes on the conventional view associated with Leonard Levy that underscores the seditious libel heritage of the First Amendment. Instead, a more liberal perspective is offered to counteract such time-honored accounts. Moving to consideration of press freedoms during crisis times, Powe argues that the Sedition Acts ran against the grain of the framing period in a strong synthetic account. Similar treatment is given to the tainted legacy of press rights across several crisis settings.

The second section of Powe's analysis moves beyond the historical doctrinal recitation of his opening chapters to a more openly prescriptive accounting of case outcomes in the specific issue areas of libel, injunctions, media access, and antitrust litigation. At times, the analysis is prone to unabashed "Warrenism" as, for example, when Powe asserts, "Much of the current state of libel law is associated with the untimely and unfortunate transformation of the Warren Court into the Burger Court." (p. 110) Above all else, however, the discussion of specific press freedom issues reveals checkered decisional patterns that offer no discernible enduring principles. Throughout this analysis Powe relates the theoretical underpinnings and historical foundations of media law to the pragmatic realities of the cases under scrutiny.

The concluding section of Powe's tripartite study explores the relevance and applicability of the "right to know" and "fourth estate" models of press protection to numerous media rights problems. The analysis illustrates that, ultimately, neither model fully justifies the full range of press freedom claims and that many such claims are, above all else, self-serving. Still, the fourth estate model, perhaps like judicial review itself, appears to win favor as an "act of faith."

Powe claims that his book has been written for the "willing reader" of all stripes, not solely for an academic audience. On this level it has, at best, mixed success. Often, the analysis is not easy going, much like sitting through a

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complex law school dialectic. Powe takes neither an absolutist nor an unduly conservative posture towards press freedom. His preferences would not satisfy the Reporters Committee for Freedom of the Press or those in Warren Burger's camp. His "solutions" to vexing press problems emerge as pragmatic yet, ultimately, perhaps as unprincipled as the case decisions he critiques. Throughout the volume, Powe makes choices and draws lines, yet it is never evident what principled basis exists for the choices he makes. In the final analysis, the book is unsatisfying for readers seeking clues to the "right answers" to press freedom questions. Curiously, for a volume devoted exclusively to press rights, little or no distinction is drawn among cases such as RED LION BROADCASTING V. FCC, CBS V. DEMOCRATIC NATIONAL COMMITTEE, and MIAMI HERALD V. TORNILLO over the different constitutional considerations that can come into play when considering broadcast versus print journalism.

Much more sweeping in scope, theoretically driven, and provocative in its argument is Graber's indictment of the utility of existing First Amendment theory for dealing with contemporary manifestations of First Amendment problems. At variance with conventional wisdom, in Graber's view, the First Amendment has enjoyed two dominant theoretical defenses of speech: an early conservative libertarian tradition and, since World War I, a civil libertarian tradition. The conservative tradition did not approach differently the issues raised by free expression and private property. In both domains, the central focus fell on individualism, and courts could justifiably play a role in protecting expression and property from governmental actionlacking due process. Civil libertarianism, in contrast, focuses on the social interest in speech (civic debate), not the individual right to self expression. While justifying judicial activity to protect speech's role in democratic processes, the approach forbids interference with economic and social policy choices. Thus, as Graber notes, "... judges must not concern themselves with the relationships between private property and political expression but should protect only those able to exercise their First Amendment rights." (p. 9) In effect, under civil libertarianism, "Courts had no power to provide citizens with the resources they would need to effectively use their free speech rights." (p. 12)

This, for Graber, defines the central contemporary First Amendment dilemma since, he argues, issues of access to the marketplace of ideas, economic disparities, campaign finance, and corporate speech are society's dominant First Amendment concerns surpassing the traditional problem of how much speech the First Amendment protects. The villain of the piece, in Graber's view, is venerated constitutional scholar Zechariah Chafee, who is (dis)credited with orchestrating (manipulating) the movement from conservative to contemporary civil libertarianism. Chafee's frame of reference for First Amendment problems simply cannot address questions which it did not anticipate.

Chafee never considered...possible constitutional relationships between free speech and private property...[T]he difficulty with Chafee's analysis is not simply that he opposed judicial activism that promoted the economic conditions necessary for effectively exercising free speech rights...Rather, his democratic process model of the judicial function assumes that such problems are trivial or non- existent. (p. 164)

Indeed, ironically, conservative libertarians could, in Graber's view, be more successful in handling such problems.

Looking towards our constitutional future, Graber calls for a new modern defense of free speech that pays attention to the link between speech and property "in a world where the major threat to meaningful debate on matters of public importance is not that many are prevented from speaking but that many do not have the resources necessary to be heard." (p. 215) In the new paradigm in which the First Amendment must be viewed, the concerns of "classic" free speech cases

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such as SCHENCK, ABRAMS, and GITLOW are no longer at issue. Instead, an approach is favored that is "more sensitive" to the threats posed to political processes by the economically advantaged. In view of the strong critique Graber develops, his outline for reform, admittedly skeletal, is quite moderate as well, reflecting the intellectual realities a contemporary First Amendment reformer must confront.

Graber's treatise gives the reader a great deal to ponder. It is not, however, free of problems. For one, the contrasts between the conservative and civil libertarian traditions may be too sharply drawn. Graber's detailed presentation of both traditions reveals their multiple strands which tend to obscure some of the distinctions highlighted. "Fault" here does not lie with the author, but it does strain the threads of the argument he weaves. Indeed, the logic of individual self-fulfillment and social benefit theory redound in the writing of all free expression advocates and the two themes are in no sense mutually exclusive. On another level, the portrayal of Chafee as a constitutional Svengali seems a bit much to swallow. The tone of the critique suggests manipulative willfulness, perhaps even malevolence. It simply goes too far on insufficient evidence. The reader may have similar difficulties with the portrayal of a conservative libertarian court, hell-bent on substantive due process, as a pro-expression court. By and large, the issues to test this commitment did not arise. The question of whether these conservative jurists would follow their faith if put to the test is one that, of course, cannot be answered. The fact that progressive approaches failed to protect speech during wartime need not imply that the conservative libertarian alternative would have been more successful in that political context. One may also disagree with Graber's characterization of the Holmes/Brandeis free speech tradition as containing mostly "rhetorical flourishes." Finally, Graber may be too ready to dismiss the First Amendment concerns that dominate the civil libertarian paradigm. Ongoing debates on political correctness, flag burning, demonstrations at abortion clinics, hate speech and other "traditional" First Amendment issues are not only still alive but may be on the rise.

None of this diminishes the importance of Graber's work. He has performed a service in demonstrating that issues of civil liberties and governmental powers are ultimately linked, a reality that is often ignored in the structure of our distinct constitutional law and civil liberties classrooms and, all too often, in our thinking as well. In Graber's documentation that mixed issues of speech and property are simply not old wine in new bottles but, rather, are concerns calling for novel First Amendment solutions, he has issued a compelling challenge to democratic theorists of every stripe.


Copyright 1992