Book Review: The Universal First Amendment – Bold Ideas for Press Freedom in a Global Era

posted by Ronald K.L. Collins

Uninhibited, Robust and Wide-Open: A Press for a New Century by Lee C. Bollinger. Oxford University Press, 2010, pp. 210. Cloth: $21.95.

Thirty or so years ago I had the honor of working with Robert Maynard Hutchins (then at the Center for the Study of Democratic Institutions) to help organize a two-day conference on constitutional law. Hutchins knew all of the luminaries of the day and invited notables such as Charles Black, Henry Steele Commager, Max Lerner, Louis Pollak, Ruth Bader Ginsburg, Laurence Tribe, Jesse Choper, and Charles Wyzanski. He turned to me, then a recent law graduate, to help identify some of the “up and coming players” in constitutional law – people who would “make a name for themselves and leave a mark on the law.” Happily, I obliged him and recommended, among others, Steve Shiffrin (UCLA) and C. Edwin Baker (Oregon). Oh, there was one other person I recommended; he was then an associate professor at the University of Michigan – Lee Carroll Bollinger.

Back then, in a cogent essay entitled “Elitism, The Masses & the Idea of Self-Government” (published in Constitutional Government in America), Professor Bollinger expressed concern about the “‘central meaning of the First Amendment,’” particularly as it pertained to broadcast regulation. Since then he has revisited that general concern, in one way or another, in a variety of thoughtful works such as The Tolerant Society (1986), Images of a Free Press (1991), and Eternally Vigilant (2002) co-edited with Geoffrey R. Stone. Now, with the recent publication of Uninhibited, Robust and Wide-Open, Lee Bollinger (president of Columbia) returns, yet again, to the grand optimism expressed by Justice William Brennan in New York Times Co. v. Sullivan (1964), from which the title of his latest book derives.

The book is the eighth installment in Oxford’s Inalienable Rights Series edited by Professor Stone.  Bollinger is a sensible pick given his background as an esteemed First Amendment scholar and as a university president whose toleration has been tested by both campus free speech protestors (see NYT, Oct. 22, ‘06) and by critics outraged by his willingness to allow Iran’s president to speak at Columbia (see WSJ, Sept. 24, ‘07).  He also serves as a director of the Washington Post Company.  All in all, Bollinger brings both idealism and pragmatism to his project.   As the book’s title suggests, his hope is to infuse the spirit of the former into the realities of the latter.  Professor Bollinger thus invites his readers and the courts to reconsider and recast some of their notions of First Amendment law.

Uninhibited, Robust and Wide-Open is concise; it has but four chapters, a short epilogue, 163 pages of text, and 34 pages of endnotes.  In the book’s early chapters, the author’s understanding of the First Amendment is heavily informed by Supreme Court decisional law, post 1919.   Bollinger uses the first half of his book to help set the stage (the decisional and jurisprudential premises) for what will follow – that “new mindset,” that “shift in perspective.”  In that sense, the book invokes the principles of the past to inform the practices of the future.   And in doing so, Bollinger embarks on an adventurous campaign to modify the way we think about the First Amendment generally, and press freedoms in particular.

Much more could be said in a descriptive sense about Bollinger’s engaging book, but I will forgo that task in order to address a larger concern, namely, his arguments for the “need to create a global system of a free press for the emerging global society.” He calls on us “to think in terms of a global public forum . . . .”  To that end, Bollinger calls on his readers, and the Supreme Court, to create a “framework for how to think about the press in the twenty-first century.”

His goals here are several:  (1) to enhance the principle of freedom of information generally, (2) to help democratize the world by means of an independent and objective press, and (3) to advance the Enlightenment principle – “We need to promote the spread of knowledge and information, because in general people behave better when they know more.”  In an aspirational sense, Bollinger’s work is somewhat reminiscent, though in abbreviated form, of Zechariah Chafee’s two-volume work, Government and Mass Communications (1947).

7 Questions

To realize his goals, Professor Bollinger proposes some daring ideas.  It is precisely such uninhibited ideas that best serve the kind of robust discussion necessary to ensure informed thinking about the future of the First Amendment.  In that collegial spirit, then, I will list a few of his bolder proposals and then offer a comment or raise a question or two (not rhetorical by any means) about them.  My aim is to encourage open and informed dialogue about Bollinger’s big-idea proposals.

1.   The role of the Supreme Court:  As Bollinger sees it, the Court must “begin the process of making the shift from the constitutional paradigm of a national public forum to a global one.”

Does this extend the judicial power of the Court beyond what is set out in the text of Article III of the Constitution?  What principle in our national Constitution allows for a paradigm shift to a global perspective for reinterpreting the First Amendment?

2.   Speaking to the world: The “Court must speak,” argues Bollinger, “more directly to the broader world.  We need actively and deliberately to try to influence the rest of the world to embrace what we have come to believe is vital to a good society.”

Jurisprudentially speaking, how does this affect the traditional adjudicatory role of the Court?  Philosophically speaking, does this idea ratchet but one way?  That is, to what extent must our Court listen “more directly” to the ideas of other courts in other nations in interpreting the law of free expression?   Pragmatically speaking, can this objective be realized if a majority of the Court is reluctant to being influenced by any and all foreign laws?

3.   Drawing on international law:  The “Court might also draw on the language and concepts in current international conventions and laws . . . .”  Here, Bollinger urges reliance on Article 19 of the Universal Declaration of Human Rights and on its focus on receiving and imparting “information and ideas through any media regardless of the frontiers.”  The Supreme Court, adds Bollinger, “should explicitly acknowledge this way of conceiving of freedom of the press.”  Later, he posits that “the norms at the core of international human rights law are largely consistent with the traditional conception of the First Amendment.”  (note emphasis added)

Mindful of such influence, how might the role of press freedom be affected in, say, cases where religious defamation is alleged?  (See NYT, Dec. 18, 09: “The U.N. General Assembly condemned defamation of religion for the fifth year running . . . .”)

4.   Embracing the Doctrine of Access to Newsworthy Events and Information:  “The time has come,” we are told, “to change First Amendment doctrine to recognize an affirmative right of the press to have access to information under the control of government and to otherwise engage in newsgathering.”

If one defines (as Bollinger seems to) “press” as the traditional institutional press, does that not create a privileged constitutional status for the “press” vis-à-vis the citizenry?  Functionally speaking, in a world where bloggers (such as Markos Moulitsas Zúniga at the Daily Kos and Lyle Denniston at SCOTUSblog) are increasingly rivaling their institutional press counterparts, how realistic is it to exclude bloggers? (Consider, “Bloggers Subpoenaed by TSA:  Federal Shield Law, Anyone?”)  If, however, some bloggers are to be included and not others, how if at all is that line to be drawn? (See “Shield Law Clears Senate Committee Hurdle”)

Additionally, how should a balance be struck between press access to government information and claims of state secrets, military intelligence, and domestic security? How much deference should courts give to experts in these fields?  (See letter from Robert Gates to Sen. Harry Reid, March, 3, ‘08, opposing Free Flow of Information Act).

5.   Jettisoning the Indecency Doctrine:  In what would surely be music to the ears of Carter Phillips (who argued the Fox indecency case in the Court last term) and Robert Corn-Revere (who is arguing the Janet Jackson case in the Third Circuit), Bollinger suggests that the rule of FCC v. Pacifica (1978) be abandoned:  “It is time,” he writes, “to end the regulation of ‘indecent’ language and images in broadcast programming.   The Court should declare this unconstitutional.”

Culturally speaking, how would Bollinger respond to those who would argue that such a change would further debase our media environment and invite, as Professor James Twitchell has suggested in his book Carnival Culture (1992), the triumph of “vulgarity”?  (For the record:  I do not disagree with Bollinger; I only want to know his response.)

6.   The return of the Fairness Doctrine:  In a recommendation certain to raise eyebrows in much of the First Amendment community, Bollinger proposes that the FCC “reverse” its position on the Fairness Doctrine – “I have always been attracted to the idea that broadcasters should be required to sell time to those wishing to express their views about public issues.”  Equally controversial, Bollinger believes that the “FCC should now also require or encourage broadcasters to cover international and global issues.”  Moreover, he believes that broadcasters should also be obligated to provide “a certain amount of time free,” and/or “public funds” should be made available for this purpose.

Quite apart from the problems raised by new proposals to revive the Fairness Doctrine (see “Fairness 2.0: Media Content Regulation in the 21st Century”), is it practical to think any such proposals could be confined to broadcasters at a time when we are witnessing a convergence of media?  (See Justice Dept. to review Comcast deal to take over NBC Universal) And would this not place broadcasters at a competitive economic disadvantage, and one that might discourage them from entering the fray of controversial political debates?

7.   Use of international and regional treaties to safeguard press freedoms:  One of Bollinger’s more imaginative proposals is to use the World Trade Organization “to uphold the freedom of expression principles that are enshrined in separate international agreements . . . .”

Operationally speaking, what if the WTO were to resolve a press freedom issue in a way contrary to settled First Amendment law?  Culturally speaking, to what extent are modern notions of American free expression inextricably linked to our brand of advanced capitalism?  That is, can the largely non-regulatory norms of our highly capitalistic culture be reconciled with those of socialist or predominantly religious cultures?

Again, more could be said about this fascinating book with its treasure trove of ideas (see also pp. 156-161, listing 9 additional proposals), albeit some quite controversial.  For now, I will only add that given the breadth and richness of Bollinger’s proposals, his book is an ideal candidate for a conference with lawyers, law professors, political scientists, journalists, policy makers, and judges offering their respective views.

Conclusion

In closing, let me echo what Floyd Abrams declared in a blurb for Lee Bollinger’s Images of a Free Press:  “Bollinger’s approach is creative, sometimes disturbingly so:  for those of us that accept the basic premise of current First Amendment law, this book is one we must be prepared to answer.”   I agree.

There is much in the drift of President Bollinger’s thinking that will draw approving nods from some of the leading free speech scholars in the legal academy – e.g., Steve Shiffrin, Jerome Barron, and Robert Post.   Then again, some of his thoughts are just as likely to draw a critical response from some of the leading First Amendment lawyers in the nation – e.g.,  Abrams, Corn-Revere, and Lee Levine.   Even so, Uninhibited, Robust and Wide-Open offers its readers a wonderful opportunity to test their own thinking in such matters and decide for themselves.  And is that not an occasion of joy for any author?

Ultimately, the most worthwhile works on free speech prompt their readers to think about the meaning of freedom: they attract minds not converts; they open inquiry not end it; and they may even help us to realize what was once thought unrealizable.

Ronald Collins’ next book is The Fundamental Holmes:  A Free Speech Chronicle and Reader (Cambridge University Press, 2010), followed by We Must not be Afraid to be Free, with Sam Chaltain (Oxford University Press, 2010).

 January 13, 2010 at 6:50 pm   Posted in: Articles and Books, Book Reviews, First Amendment    Print This Post

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