View From a Height

I’m not the first one to make the connection.

That’s not surprising.  What is perhaps surprising is that we’re not the first generation to have the debate over what free speech means.  In fact, the very first generation of free Americans had this debate.  This same exact debate.

I read Pauline Maier’s remarkable Ratification in 2011, but this stayed with me.  On p.71 – 75, she has a section on “Freedom of the Press.”  Surprisingly, the context is very much the same now as it was 226 years ago.

Threats…encouraged writers to continue the standard practice of publishing essays under pseudonyms.  In Boston, however, Benjamin Russell, published of the Massachusetts Centinel, announced in early October that he would print no essays that raised objections to the Constitution unless their authors left their names “to be made public if desired.”  That would clearly discourage critics of the Constitution from speaking out.  The local tradesmen and artisans (known as “mechanics”) who strongly supported ratification, “had been worked up to such a degree of rage,” one Massachusetts official noted, “that it was unsafe to be known to oppose [the Constitution] in Boston.” … Other commenters, however, charged Russell with violating freedom of the press since his policy would curtail the range of arguments available to the public.  In Philadelphia, a writer who took the pen name “Fair Play” answered the threats leveled against those who criticized the Constitution by insisting “that the LIBERTY OF THE PRESS — the great bulwark of all the liberties of the people — ought never to be restrained” (although, he added, “the Honorable Convention did not think fit to make the least declaration in its favor”).

The freedom such writers defended went back to an earlier time, when colonial printers had to appeal to a broad range of readers to stay in business; they took a neutral stand and justified necessity by defining a “free press” as one that was “open to all parties.”  That way of operating came under pressure as the market for newspapers grew and the Revolution raised doubts about giving “all parties,” including Loyalists, ready access to the reading public.  State partisan divisions during the 1780s also made it difficult, and sometimes unprofitable, for printers to remain impartial.  On the other hand, the establishment of a republic, in which all power came from the people, gave the argument for a press open to all parties a new ideological foundation: To exercise their responsibilities intelligently, the citizens of a republic had to be fully informed of different views on public issues.

That concept of a free press was, in any case, different from the standard Anglo-American understanding of “freedom of the press,” which referred to the freedom of printers to publish whatever they wanted without “prior restraint” by the government….The emphasis was on the freedom of the press to monitor and criticize persons in power and the policies they adopted.

…

In the end, proponents of the Constitution found an effective alternative to threats of tar and feathers and other forms of physical punishment: They could influence editorial policy by cancelling or threatening to cancel their subscriptions to “offending” newspapers.  Advocates for freedom of the press could insist that the American people needed access to the full range of opinions on the Constitution. But were individual subscribers…obliged to pay for newspapers that published essays they considered profoundly subversive of their own and the country’s best interests?

…

Men like Oswald were rare.  Only twelve of over ninety American newspapers and magazines published substantial numbers of essays critical of the Constitution during the ratification controversy…. If printers were “easily terrified into a rejection of free and decent discussions upon public topics,” [New-York Journal Thomas Greenleaf] wrote in early October 1787, the “inevitable consequence” would be “servile fetters for FREE PRESSES of this country.”  Greenleaf promised to give “every performance, that may be written with decency, free access to his Journal.”  For their persistence, Oswald and Greenleaf suffered verbal attacks, cancelled subscriptions, and threats of mob violence.  Their insistence on maintaining what they understood as a “free press,” that is, one that presented the people with criticism as well as hallelujahs for the Constitution, helped start a widespread public debate on the Constitution, which they they kept going. (Emphasis added – ed.)

Just because the government’s not involved doesn’t mean it’s not a free speech issue.

Arguing over whether this is a legal or a strictly First Amendment issue is the reddest of red herrings.  I suppose there’s some possibility that some judge will decide that if a baker and a photographer can be forced to provide services for gay weddings, then A&E can be forced to employ religious Christians, but absent that, it’s unlikely this will be decided through the courts.  And certainly nobody on the right is calling for a return to the bad old days of the “fairness doctrine,” which wouldn’t apply here in any event.

For most libertarians and conservatives, that’s ok.  But we can’t let it end with that.  We can’t short-circuit them by dismissing them because there are no legal implications.  As Mark Steyn points out, if we want civil society to be where these discussions take place, then we have to ensure that civil society is a place where we can actually have these discussions.

Right now, it’s difficult to tell A&E, and only A&E, that you’re unhappy with their editorial decisions, because if you want to buy A&E, you’re also forced to buy a whole package of other cable channels, not all of which are even owned by the same companies.  The most effective way to enable us to hold A&E accountable is to unbundle these offerings, and allow me to choose, a la carte, what channels I want to receive.   There’s a bill pending in Congress to do just that, and Canada has already taken that step.

In the end, even though there’s an excellent chance that unbundling will mean higher, rather than lower cable bills, it may be the best means of sending the market signals that prevent an enforced conformity.  Right now, more channels just look like a dizzying array of sameness, with those channels of communication that “appeal to a broad range” of viewers, readers, or listeners, being dictated to by bullies who cannot stand to hear that someone disagrees.