The creation of a Western free press was the work of centuries, starting
roughly in the 1600s. Only by the end of the 19th century would a
free press, along modern lines, be established. In England, the press
had to overcome, in the following order:
• Opposition from monarchs
• Opposition from Parliament
• Opposition from the courts, and cases brought to court
The creation of a El Salvador newspaper. Photo
by Sean Hawkey
All three opponents
used a daunting variety of controls on the press. This section describes
controls used in the 17, 18, and 19th centuries, followed by a list
of international treaties formed during the 20th Century.
Officials view the printing press as a device to be used in support
for the monarch and other authorities. At the least, the press was
to print material that was politically neutral and did not question
the establishment. It was the king’s prerogative as to who would
own and operate a printing press. Systems of censorship and press
licensing were set up in an attempt to control the increasing flood
of new books, broadsides and pamphlets since Gutenberg’s printing
press in the mid-1500s.
Pre-publication Controls in England
1. Licensing of books and papers
2. Restrictions on presses, and printers
3. Submission of papers to censor prior to publication
4. Freedom to speak limited to king’s circle; limited right
in Parliament; reportage of parliament illegal.
5.Harsh penalties for illegal or offending publications:
• Seizure and smashing of presses
• Revoking license; financial penalty
• Jail for seditious or criminal libel
• Physical attacks on editors
Seminal events challenging controls: 17th century 1. Emergence of liberal ideas, such as:
• John Milton’s argument for end of licensing (truth beats
falsehood), Aeropagitica, illegal tract against censorship in 1644.
• English Bill of Rights (1689); more restrained monarchy after
“glorious revolution”
• John Locke’s idea of tolerance, government by consent;
free speech as a natural right not given up when society formed.
2. End of licensing law in England, 1694: explosion of new papers.
Pre-publication controls wither.
18th century: public sphere and the press Early 1700s: Freer public sphere in England,
serviced by new unlicenced press. Press claims to represent the “public”
and liberty.
Reporting on Parliament allowed in 1771; stimulates growth of reporting
and public scrutiny.
Constitutional guarantees: Freedom of press protected by American
and France constitutions.
Response to radical press:
England: Government repression of radical press in late 1700s; fear
of revolution
France: Napoleon extinguishes the last flames of press freedom in
France after revolution; applies same repressive measures on the press
in all of the European countries that he conquers.
Constitutional protection of free press
U.S. Constitution -- First Amendment, 1791:
“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof: or
abridging the freedom of speech, or of the press;
of the right of the people peacefully to assemble, and to petition
the government for a redress of grievances.”
Declaration of the Rights of man and Citizen (French National Assembly,
1789)
Article XI:
“The free communication of ideas and opinions is one of the
most precious of the rights of man. Every citizen may, accordingly,
speak, write and print with freedom, but shall be responsible for
such abuses of this freedom as shall be defined by law.”
Libel threat weakens.
As the battle for English public opinion is waged between government
and journalists in the 1700s, the threat of libel declined.
The libel threat:
• The most serious threat was seditious and criminal libel which
could lead to arrest, seizure of press, fines. The English government
also used “general warrants” (no specific names on the
warrant) to search many offices.
• Libel was a powerful charge because truth was not a defence,
and the jury decided only whether the printer did, in fact, publish
the libel. Conservative judges ruled on the damages.
But reformers grew bold in the 1700s, while government began to lose
key cases:
• Cato’s letters (1720-1723): Anonymous letters in English
papers calling for liberty of press, critical of government.
• US publisher John Peter Zengler cleared of libel against the
governor of New York (1735).
• Letters of Junius (1769-1772): Anonymous letters in London
paper criticizing George III’s regime on behalf of the “people.”
• John Wilkes, MP and editor of The North Briton newspaper(1763),
acquitted of libel charge laid by government.
Meanwhile, the threat of libel was weakened when Fox’s libel
law passed in 1792 increased the power of juries, who were increasingly
inclined to side with editors who were charged.
The Fourth Estate
Toward the end of the eighteenth century, Edmund Burke, theorist of
the English constitution, rose in Parliament to talk about a new player
in democracy – a fourth estate. Thomas Carlyle reported Burke’s
comments:
“Burke said there were Three Estates in Parliament; but in the
Reporter’ Gallery yonder, there sat a Fourth Estate more important
than they all. It is not a figure of speech, or a witty saying; it
is a literal fact – very momentous to us in these times. Literature
is our Parliament too. Printing, which comes necessarily out of Writing,
I say often, is equivalent to Democracy; invent Writing, Democracy
is inevitable ... Whoever can speak, speaking now to the whole nation,
becomes a power, a branch of government, with inalienable weight in
lawmaking, in all acts of authority. It matters not what rank he has,
what revenues or garnitures: the requisite thing is that he have a
tongue which others will listen to; this and nothing more is requisite.
The nation is governed by all that has tongue in the nation. Democracy
is virtually there.”
From Carlyle, On Heroes, Hero-worship and the Heroic in History,
141.
19th century: The liberal papers
The modern free press emerged in the 19th century across Europe, North
America and elsewhere as part of the growth of liberalism and democratic
reform. The idea of a liberal press was spread across the English
empire, as onerous press laws gradually weakened or were eliminated.
Liberal papers pressed for a free economy and a free marketplace of
ideas, including a maximally free press. Liberal creed stated forcefully
by John S. Mill in On Liberty (1859).
Removal of forms of control:
1. Taxes: In England, taxes on papers to control the spread of ‘mass’
or popular newspapers finally removed by the mid-1800s.
2. Government regulations: Across Europe, many press regulations were
eliminated by the 1880s.
3. Libel: Legal decisions reduce libel from criminal to common law;
truth was recognized as a defence; courts recognized the right of
the press to criticize government and its ministers.
Treaties on free speech
In the 20th century, a significant, modern development of free speech
and free press rights has been their inclusion in international treaties
and international law.
U.N. Declaration of Human Rights (1948),
Article 19:
Everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and
regardless of frontiers. http://www.un.org/Overview/rights.html
U.N. Covenant on Civil and Political Rights
(1966), Article 19:
Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers; either orally, in writing
or in print, in the form of art, or through any other media of his
choice. The exercise of the rights provided for in this article carries
with it special duties and responsibilities. It may therefore be subject
to restrictions, but these shall only be such as are provided by law
or are necessary
:• For the respect of the rights or reputations of others
• For the protection of national security or of public order
or of public health and morals
UN Covenant on Civil and Political Rights
(1966), Article 20:
Article 20 prohibits:
Any propaganda for war shall be prohibited by law. Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
http://193.194.138.190/html/menu3/b/a_ccpr.htm
Regional Human Rights Treaties
European Convention on Human Rights (1953),
Article 10:
Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless
of frontiers. This article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as prescribed by law and are necessary in
a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevent of disorder or crime,
for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality
of the judiciary. http://www.hri.org/docs/ECHR50.html
Western Hemisphere
American Convention on Human Rights (1969)
Article 13:
“Everyone has the right to freedom of thought and expression.
This right includes freedom to seek, receive, and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing, in print, in the form of art, or though any other medium
of one’s choice”
“The exercise of the right shall not be subject to prior censorship
but shall be subject to subsequent imposition of liability, which
shall be expressly established by law to the extent necessary to ensure
. . . Respect for the rights or reputations of others, or . . . the
protection of national security, public order, or public health or
morals.”
Also forbids: indirect restrictions on media communications through
government or private control of newspaper supplies, or assigning
of broadcast frequencies. Also forbids propaganda for war or hatred
of groups.
African Charter of Human and Peoples’ Rights (1981)
Article 9: " Every individual
shall have the right to receive information. Every individual shall
have the right to express and disseminate his opinions within the
law.
Article 27: Duties of each individual to family,
society, the State and other governmental entities, and the international
community and requires each person exercise their rights with regard
for the “rights of others, collective security, morality and
common interest.”
Article 29:
The individual has the duty, “To serve his national community
by placing his physical and intellectual abilities at its service
. . . (and) to preserve and strengthen social and national solidarity,
particularly when the latter is threatened.”
