1 Eg., Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927); Fiske v. Kansas, 274 U.S. 380 (1927).Google Scholar

2 E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cox v. New Hampshire, 312 U.S. 569 (1941); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cantwell v. Connecticut, 310 U.S. 296 (1940).Google Scholar

3 E.g., Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Konigsberg v. State Bar, 366 U.S. 36 (1961); Speiser v. Randall, 357 U.S. 513 (1958).Google Scholar

4 See, e.g., Garner v. Louisiana, 368 U.S. 157 (1961); Lombard v. Louisiana, 373 U.S. 267 (1963); Brown v. Louisiana, 383 U.S. 131 (1966).Google Scholar

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7 See, e.g., Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).Google Scholar

8 See, e.g., Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94 (1973); New York Times v. Sullivan, 376 U.S. 254 (1964).Google Scholar

9 See, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971).Google Scholar

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11 See, e.g., United States v. Caldwell, rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).Google Scholar

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13 See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Google Scholar

14 See, e.g., Estes v. Texas, 381 U.S. 532 (1965); Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).Google Scholar

15 See, e.g., Saxbe v. Washington Post, 417 U.S. 843 (1974); Parker v. Levy, 417 U.S. 733 (1974); Pickering v. Board of Educ., 391 U.S. 563 (1968).Google Scholar

16 See, e.g., Gregory v. Chicago, 394 U.S. 111 (1969); Cox v. Louisiana, 379 U.S. 536 (1965).Google Scholar

17 See, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. Chicago, 394 U.S. 111 (1969); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Brown v. Louisiana, 383 U.S. 131 (1966).Google Scholar

18 376 U.S. 254 (1964).Google Scholar

19 The Court's performance in defamation cases is considered at length in section IV infra.Google Scholar

20 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94 (1973); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). These cases are discussed in detail in section VI infra.Google Scholar

21 One can only speculate about such matters. There is some evidence, however, which supports the judgment that the antiwar protests had an important effect on war policy in Washington. See, e.g., Townsend Hoopes, The Limits of Intervention: An Inside Account of How the Johnson Policy of Escalation in Vietnam Was Reversed 180, 215–17, 224 (New York: David McKay Co., 1969); Lyndon Baines Johnson, The Vantage Point: Perspectives of the Presidency, 1963–1969 at 530 (New York: Holt, Rinehart & Winston, 1971); 4 Mike Gravel, ed., The Pentagon Papers: The Defense Department History of United States Decision-making on Vietnam 560 (Boston: Beacon Press, 1971); George Christian, The President Steps Down 159–60 (New York: Macmillan Co., 1970).Google Scholar

22 See Theodore II. White, Breach of Faith: The Fall of Richard Nixon 224, 227 (New York: Atheneum, 1975). One certainly gets the impression reading the account of reporters Bernstein and Woodward that the uncovering of the Watergate crimes was due to the courageous independence of the publisher and editors of the Washington Post in addition to a lot of hard work and luck. See, e.g., Carl Bernstein & Bob Woodward, All The President's Men 102–3, 165–66, 192, 260 (New York: Simon & Schuster, 1974).Google Scholar

23 The first part of section II infra is devoted to documenting this point.Google Scholar

24 See, e.g., The Politics of Aristotle 101 (Ellis trans. London: Dent & Sons, 1952); Marsilius of Padua, The Defender of Peace, vol. 2, The Defenser Pacis 87–88 (Alan Gerwith trans. New York: Columbia University Press, 1956); Charles Louis Montesquieu, The Spirit of Laws 179 (Worcester: Isaiah Thomas, Jr., 1802); James Madison (?), The Federalist No. 51, in Jacob E. Cooke, ed., The Federalist 347–53 (Middletown, Conn.: Wesleyan University Press, 1961); John Stuart Mill, Considerations on Representative Government 243–45 (Oxford University Press, 1912); Karl Raimund Popper, The Open Society and Its Enemies 122–25 (5th ed. rev. Princeton, N.J.: Princeton University Press, 1966).Google Scholar

25 John Locke, An Essay Concerning the True, Original, Extent, and End of Civil Government, ch. 13–19 (Peardon ed. Indianapolis: Bobbs-Merrill, 1952).Google Scholar

26 The idea that free speech and a free press constitute a bulwark against the misuse of official power did receive some mention at the hands of the Levellers during the English Civil War. See, e.g., John Lilburne, England's New Chains Discovered (1649), in G. E. Aylmer, ed., The Levellers in the English Revolution 143–47 (Ithaca, N.Y.: Cornell University Press, 1975); Richard Overton (?), The Humble Petition (1648), in Don M. Wolfe, ed., Leveller Manifestoes of the Puritan Revolution 326 (New York: T. Nelson & Sons, 1944). Milton's Areopagitica also came out of the English revolution. On the emergence of democratic and libertarian thought during this period, see generally Christopher Hill, The World Turned Upside Down: Radical Ideas During the English Revolution (New York: Viking Press, 1972).Google Scholar

27 See Fredrick Seaton Siebert, Freedom of the Press in England 1476–1776: The Rise and Decline of Government Controls 289–302, 323–63 (Urbana: University of Illinois Press, 1952).Google Scholar

28 Bernard Bailyn, The Ideological Origins of the American Revolution 36 (Cambridge, Mass.: Harvard University Press, 1967). See also Leonard W. Levy, Freedom of Speech and Press: Legacy of Suppression in Early American History 116 (New York: Harper Torchbooks, 1963).Google Scholar

29 Clinton Rossiter, Seedtime of the Republic: The Origin of the American Tradition of Political Liberty 141 (New York: Harcourt, Brace & World, 1953).Google Scholar

30 Cato, Letter No. 15, reprinted in Leonard W. Levy, ed., Freedom of the Press from Zenger to Jefferson: Early American Libertarian Theories 11 (Indianapolis: Bobbs-Merrill Co., 1966). Cato's Letters No. 32, 100, and 101 also contain discussions of freedom of expression. The first two are printed in the Levy anthology at pp. 14–24. All three can be found in David Louis Jacobson, ed., The English Libertarian Heritage (Indianapolis: Bobbs-Merrill Co., 1965).Google Scholar

31 Cato, Of Freedom of Speech, in Levy, supra note 30, at 12.Google Scholar

32 Id. at 13–14.Google Scholar

33 An excellent study of Wilkes's escapades during the 1760s and 1770s is George Rudé, Wilkes and Liberty (New York: Oxford University Press, 1962). See also Levy, supra note 28, at 145–47.Google Scholar

34 See Levy, supra note 28, at 146–47; Siebert, supra note 27, at 377–80.Google Scholar

35 John Wilkes, The North Briton, No. 1, Sat. June 5, 1762, at 1–2 (London: W. Bingley, 1769).Google Scholar

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37 Father of Candor, An Enquiry into the Doctrine Lately Propagated Concerning Libels, Warrants, and the Seizure of Papers 30, 31 (New York: DaCapo Press, 1970).Google Scholar

38 Id. at 32.Google Scholar

39 See Siebert, supra note 27, at 385–89.Google Scholar

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41 Zechariah Chafee, Jr., Free Speech in the United States 21 (New York: Atheneum, 1969).Google Scholar

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43 Bailyn, supra note 28, at 43.Google Scholar

44 Id. at 25.Google Scholar

45 Id. at 64.Google Scholar

46 Id. at 48.Google Scholar

47 Id. at 56.Google Scholar

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49 Id. at 28. The authorship of the anonymous essay has not been conclusively established, but Levy states it was “almost certainly” written by Alexander.Google Scholar

50 Id. at 29.Google Scholar

51 The events leading up to and surrounding the Zenger trial are described in Stanley Nider Katz's introduction to James Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 1–35 (2d ed. Cambridge, Mass.: Harvard University Press, Belknap Press, 1972).Google Scholar

52 Alexander, supra note 51, at 81.Google Scholar

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56 Reprinted in 1 Bernard Schwartz, ed., The Bill of Rights: Documentary History 221 (New York: Chelsea House Publishers, 1971).Google Scholar

57 Id. at 223.Google Scholar

58 See Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison 211 (Indianapolis: Bobbs-Merrill Co., 1973).Google Scholar

59 Reprinted in id. at 299.Google Scholar

60 Madison's speech of June 8, 1789, presenting his proposed bill of rights to the House of Representatives, is reprinted in 5 Gaillard Hunt, ed., The Writings of James Madison 370–89 (New York: Putnam's Sons, 1904). In attempting to assess the original understanding of the First Amendment, it is important that Madison articulated as early as 1789 the theory of liberty on which he based his Virginia Report of 1799–1800. This fact casts some doubt on the thesis advanced by Professor Levy that a libertarian theory of freedom of speech was not accepted at the time the First Amendment was adopted and only emerged 10 years later as a result of the political jockeying over the Alien and Sedition Acts of 1798. See Levy, supra note 28, at 249. The debates in Congress on the Bill of Rights contain virtually nothing on the values thought to underlie the freedoms of speech, press, and assembly. The Senate journal reports no discussion of the First Amendment at all, although it does record a few votes. See 1 Annals of Congress 73, 80 (Washington, D.C.: Gales & Seaton, 1834). The House journal reports a lengthy discussion on August 15, 1789, but it covered only the religion clauses, the question whether the right to assemble was redundant in light of the right to petition, and a long debate on a proposed amendment, eventually rejected, which would have guaranteed the right of the people “to instruct their representatives.” See 1 Annals of Congress 757–78.Google Scholar

61 Meyers, supra note 58, at 330.Google Scholar

62 Id. at 331.Google Scholar

63 Id.Google Scholar

64 Id. at 315.Google Scholar

65 Id. at 338.Google Scholar

66 Id.Google Scholar

67 See his letter to Thomas Jefferson of Oct. 17, 1788, in Hunt, supra note 60, at 269.Google Scholar

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69 Madison's appreciation of the checking value may also be inferred from the formulation he adopted in his original draft of what was to become the First Amendment: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” Reprinted in Hunt, supra note 60, at 377.Google Scholar

70 Reprinted in Levy, supra note 30, at 341–42. Jefferson was in France when the Constitution and the Bill of Rights were drafted, but he took a deep interest in the subject of liberty and kept up an active correspondence with some of the persons, including Madison, who were involved in the drafting and passage of the First Amendment. See, e.g., the letters reprinted in Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton, N.J.: Princeton University Press, 1955), vol. 12, at 439–42; id., vol. 13, at 124–28, 44043; id., vol. 14, at 649–51, 659–61.Google Scholar

71 Levy, supra note 30, at 376.Google Scholar

72 Id. at 147–53.Google Scholar

73 Id. at 317, 319.Google Scholar

74 Wortman, Treatise … (New York: DaCapo Press, 1970). See esp. pp. 170, 174–77.Google Scholar

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76 See Frances FitzGerald, The Fire in the Lake: The Vietnamese and the Americans in Vietnam 369–78 (Boston: Little, Brown & Co., 1972).Google Scholar

77 See William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany 967–79 (New York: Simon & Schuster, 1960); Adam B. Ulam, Stalin: The Man and His Era 325–27, 420–21, 440–41 (New York: Viking Press, 1973); Isaac Deutscher, Stalin: A Political Biography 324–25 (New York: Viking Press, 1973).Google Scholar

78 See, e.g., Samuel Dash, Chief Counsel: Inside the Ervin Committee–ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;the Untold Story of Watergate 24, 263 (New York: Random House, 1976); Vincent Blasi, The Newsman's Privilege: An Empirical Study, 70 Mich. L. Rev. 229, 253–54 (1971).Google Scholar

79 See David Wise, The American Police State: The Government Against the People 274–322 (New York: Random House, 1976).Google Scholar

80 By “damage to society” I mean such phenomena as the undermining of the sense of community that stems from the sharing of ideals and standards, and of the sense of security that stems from the perception that one is not totally at the mercy of alien forces.Google Scholar

81 See John G. Fuller, The Gentlemen Conspirators: The Story of the Price-Fixers in the Electrical Industry (New York: Grove Press, 1962).Google Scholar

82 See Ralph Nader, Unsafe at Any Speed: The Designed-in Dangers of the American Automobile 53, 207 (New York: Grossman Publishers, 1965).Google Scholar

83 See Payoffs: The Growing Scandal, Newsweek, Feb. 23, 1976, at 26; Tad Szulc, The Money Changers, New Republic, Apr. 10, 1976, at 10.Google Scholar

84 Locke, supra note 25; Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 269–83 (New York: Harper & Bros., 1942). Compare Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Oxford University Press, 1965), discussed in detail at pp. 554–65 infra.Google Scholar

85 This characterization might apply not only to heinous deeds but also to governmental actions in serious violation of procedures established by positive law or required by fundamental notions of fair process.Google Scholar

86 Whitney v. California, 274 U.S. 357, 375 (1927).Google Scholar

87 This distinction is addressed in Ronald Dworkin, Taking Rights Seriously, in Eugene V. Rostow, ed., Is Law Dead? 168 (New York: Simon & Schuster, 1971). See also Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977).Google Scholar

88 Levy, supra note 28, at 303–20.Google Scholar

89 Spinoza, A Theologico-Political Treatise (1670) at 258 (R. H. M. Elwes trans. New York: Dover Publications, 1951).Google Scholar

90 In a brilliant essay, Isaiah Berlin suggests that Mill's On Liberty is best appreciated not as a utilitarian argument for liberty of expression but as an affirmation of the intrinsic worth of cognitive and communicative endeavor. Isaiah Berlin, John Stuart Mill and the Ends of Life, in Four Essays on Liberty 173 (New York: Oxford University Press, 1970).Google Scholar

91 See, e.g., Eugene Linden, Apes, Men, and Language (New York: E. P. Dutton & Co., 1974).Google Scholar

92 See, e.g., Orville Schell, In the People's Republic 32, 43, 53, 169, 195, 238 (New York: Random House, 1977); Fairbank, Mrs. M. and the Masses, N.Y. Rev. Books, May 12, 1977, at 21; Frank Gibney, Japan: The Fragile Superpower 71–84 (New York: Norton, 1975); Edwin O. Reischauer, The Japanese 127–56 (Cambridge, Mass.: Harvard University Press, 1977).Google Scholar

93 E.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); Stanley v. Georgia, 394 U.S. 557 (1969); Wooley v. Maynard, 45 U.S.L.W. 4379 (1977).Google Scholar

94 Cf: Martin Shapiro, Freedom of Speech: The Supreme Court and Judicial Review 46–47 (Englewood Cliffs, N.J.: Prentice-Hall, 1966).Google Scholar

95 See pp. 549–51 infra.Google Scholar

96 Whitney v. California, 274 U.S. 357, 375 (1927) (“the greatest menace to freedom is an inert people”).Google Scholar

97 Abrams v. United States 250 U.S. 616, 630 (1919).Google Scholar

98 See, e.g., Mark DeWolfe Howe, ed., Holmes-Pollock Letters (2d ed. Cambridge, Mass.: Harvard University Press, Belknap Press, 1961), vol. 1, at 163 (letter of Apr. 3, 1913) (“I am so skeptical as to our knowledge about the goodness and badness of law that 1 have no practical criterion except what the crowd wants. Personally I bet that if the crowd knew more it wouldn't want what it does–ndash;ndash;ndash;ndash;ndash;ndash;ndash;but that is immaterial”); id., vol. 2, at 13–14 (letter of May 26, 1919) (“I always say the chief end of man is to form general propositions–adding that no general proposition is worth a damn”); Harry C. Shriver, ed., Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers 187 (New York: Central Book Co., 1936) (letter to Dr. Wu) (“Our morality seems to me only a check on the ultimate domination of force, just as our politeness is a check on the impulse of every pig to put his feet in the trough”). See also, Holmes, Collected Legal Papers 304–5, 311–12 (New York: Harcourt, Brace & Co., 1920).Google Scholar

99 See, e.g., John Stuart Mill, On Liberty 68, 78 (Indianapolis: Bobbs-Merrill Co., 1958); Max Lerner, ed., The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions 395–96 (Boston: Little, Brown & Co., 1943).Google Scholar

100 See, e.g., Benjamin S. DuVal, Jr., Free Communication of Ideas and the Quest for Truth: Toward a Teleological Approach to First Amendment Adjudication, 41 Geo. Wash. L. Rev. 161, 188–94 (1972); Shapiro, supra note 94, at 52.Google Scholar

101 See, e.g., Benno C. Schmidt, Jr., Freedom of the Press vs. Public Access 3746 (New York: Praeger Publishers, 1976). See generally, Jerome A. Barron, Freedom of The Press for Whom? The Right of Access to Mass Media (Bloomington: Indiana University Press, 1973); Bruce M. Owen, Economics and Freedom of Expression: Media Structure and the First Amendment (Cambridge, Mass.: Ballinger Publishing Co., 1975).Google Scholar

102 This is the key proposition around which Benjamin DuVal organizes his stimulating and comprehensive philosophy of the First Amendment. See DuVal, supra note 100.Google Scholar

103 In this respect, the diversity value may overlap the autonomy value. But not every 102. communicative activity that contributes to human happiness can be considered such a constitutive element of individualism that a person's autonomy is impaired if he is denied the opportunity to engage in the activity. So even this aspect of the diversity value encompasses some instances of communication that fall outside the ambit of the autonomy value. For a most enlightening discussion of the interplay between the argument for free expression grounded on the notion of human autonomy and that based on an assessment of consequences, see Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204 (1972).Google Scholar

104 See, e.g., Herbert Marcuse, Repressive Tolerance, in Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse, A Critique of Pure Tolerance 81 (Boston: Beacon Press, 1965); Walter Berns, Freedom, Virtue, and The First Amendment 46–47, 223–27, 23847, 252 (Baton Rouge: Louisiana State University Press, 1957); Peter Brett, Free Speech, Supreme-Court Style: A View from Overseas, 46 Tex. L. Rev. 668, 681–82 (1968); Alexander M. Bickel, The Morality of Consent 72 (New Haven, Conn.: Yale University Press, 1975).Google Scholar

105 See, e.g., U.S. News & World Rep., Dec. 3, 1973, at 78; Low Marks for Politicians and Political Parties, Intellect, July/Aug. 1975, at 4–5.Google Scholar

106 See, e.g., the authorities collected in Alpheus Thomas Mason, ed., Free Government in the Making: Readings in American Political Thought 267, 402–3, 462, 557–58, 589, 733, 854–55 (3d ed. New York: Oxford University Press, 1965).Google Scholar

107 See Neil Sheehan et al., eds., The Pentagon Papers 239–40, 260, 263, 265, 339, 416, 442–43 (New York: Bantam Books, 1971). See also Eugene G. Windchy, On Reading the Pentagon Papers; The Prophetic Fiction of Graham Greene, New Republic, Aug. 7 & 14, 1971, at 21.Google Scholar

108 Originally published in 1948, the lectures are reprinted in Meiklejohn, Political Freedom, supra note 84.Google Scholar

109 Meiklejohn, supra note 84, at 14.Google Scholar

110 He specifically disclaims any reliance on the concept of natural rights. Id. at 57, 79.Google Scholar

111 “The constitutional status of a merchant advertising his wares, of a paid lobbyist fighting for the advantage of his client, is utterly different from that of a citizen who is planning for the general welfare.”Id. at 37.Google Scholar

112 Id. at 36–37.Google Scholar

113 See Meiklejohn, Alexander, The First Amendment Is an Absolute, Sup. Ct. Rev. 19 61 245–ndash;ndash;ndash;ndash;ndash;ndash;ndash;259.Google Scholar

114 See Meiklejohn, Alexander, What Does the First Amendment Mean 20 U. Chi. L. Rev. 461, 473 (1952-53).Google Scholar

115 See note 111 supra.Google Scholar

116 Meiklejohn, supra note 84, at 40. See also Meiklejohn, supra note 114, at 473.Google Scholar

117 Meiklejohn, supra note 113, at 253. In later writings Meiklejohn expressed regret that he entitled his Walgreen lectures “Free Speech and Its Relation to Self-Government” because “[m]any activities of belief and communication, whose freedom the Amendment protects, are not ‘forms of speech.’” Meiklejohn, supra note 114, at 464. He finally settled on the phrase “political freedom” to express the range of concerns embodied by the several clauses of the First Amendment and the other constitutional provisions to which he finds those clauses inextricably linked.Google Scholar

118 Meiklejohn, supra note 113, at 257.Google Scholar

119 Meiklejohn, supra note 84, at 86.Google Scholar

120 Id. at 62.Google Scholar

121 Id. at 73.Google Scholar

122 Id. at 74.Google Scholar

123 Id. at 66.Google Scholar

124 Id. at 68. His view of human nature as it relates to political arrangements seems strongly influenced by the idealist philosophies of Plato, Kant, and Rousseau. Malcolm Sharp remarks in his foreword to Political Freedom. “First at Amherst and later at Wisconsin, I found Mr. Meiklejohn going back most often to Plato and to Kant.”Id. at xii. Meiklejohn's employment of social contract analysis and his frequent invocation of a concept of “the general welfare” suggest a heavy debt to Rousseau.Google Scholar

125 Id. at 88. See also id. at 162–63.Google Scholar

126 Id. at 51.Google Scholar

127 Meiklejohn is quite explicit on this point: “[T]he point of ultimate interest is not the words of the speakers, but the minds of the hearers.”Id. at 26. Also, “What is essential is not that everyone shall speak, but that everything worth saying shall be said.”Id.Google Scholar

128 See, e.g., William J. Brennan, Jr., The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965). Sections IV-VI infra trace the impact of the Meiklejohn theory on the Supreme Court's analysis of libel, newsgathering, and access issues.CrossRefGoogle Scholar

129 See pp. 538–41 supra.Google Scholar

130 Meiklejohn, supra note 114, at 257.Google Scholar

131 See John Locke, The Second Treatise of Government (Indianapolis: Bobbs-Merrill Co., 1952).Google Scholar

132 See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, Belknap Press, 1971).Google Scholar

133 The classic refutation of social contract theory is David Hume, Of the Original Contract (1748), reprinted in Ernest Barker, ed., Social Contract: Essays by Locke, Flume, and Rousseau 209–36 (London: Oxford University Press, 1947).Google Scholar

134 I refer here more to the exclusion of women and slaves than to property qualifications for voting. At the time of the Constitutional Convention, several states had extended the right to vote beyond freeholders, and in any event those who spoke at the convention seemed to think that a high percentage of the adult male population could meet a freeholder requirement. See 2 Max Farrand, ed., The Records of the Federal Convention of 1787, at 193–212 (rev. ed. New Haven, Conn.: Yale University Press, 1966).Google Scholar

135 Traditional social contract theories are summarized and discussed in Barker, supra note 133, at vii-xliv; Stanley I. Benn & R. S. Peters, The Principles of Political Thought 376–91 (New York: Free Press, 1959); Christian Bay, The Structure of Freedom 47–58 (Stanford, Cal.: Stan-ford University Press, 1958). Critiques of Rawls include Brian Barry, The Liberal Theory of Justice: A Critical Examination of the Principal Doctrines in A Theory of Justice by John Rawls (Oxford: Clarendon Press, 1973); Robert Nozick, Anarchy, State and Utopia 183–231 (New York: Basic Books, 1974); Thomas C. Grey, The First Virtue, 25 Stan. L. Rev. 286 (1973); and Symposium: John Rawls's A Theory of Justice, 40 U. Chi. L. Rev. 486 (1973).Google Scholar

136 Meiklejohn, supra note 84, at 98.Google Scholar

137 Id. at 75.Google Scholar

138 In Federalist No. 10, Madison argues in favor of a republic in preference to a pure democracy. The effect of a republican form of government, he contends, may be “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves convened for the purpose.” Cooke, supra note 24, at 62. See also James Madison, Note to Speech on the Right of Suffrage (ca. 1821), in Saul Kussiel Padover, ed., The Complete Madison 36 (New York: Harper & Bros., 1953). Hamilton's oft-expressed views against mass political participation are perhaps best summed up by a statement, paraphrasing Demosthenes, which he made to the Constitutional Convention on June 22, 1787: “As a general marches at the head of his troops, so ought wise politicians, if I dare to use the expression, to march at the head of affairs; … the measures which they have taken ought to produce the event.” 1 Harold C. Syrett, ed., The Papers of Alexander Hamilton 373, 390 (New York: Columbia University Press, 1961).Google Scholar

139 See generally Will Perry, The Wolverines (Huntsville, Ala.: Strode Publishers, 1974); Joe Falls, Bo Schembechler: Man in Motion (Ann Arbor, Mich.: School-Tech Press, 1973).Google Scholar

140 Meiklejohn, supra note 84, at 73–74.Google Scholar

141 Id. at xv-xvi, 87.Google Scholar

142 Id. at 128.Google Scholar

143 Id. at 125–47.Google Scholar

144 Justices Brennan, Powell, and Stewart have on various occasions laid considerable stress on the value of self-government without building their entire analyses around it. See infra pp. 571, 574, 595, 598, 617.Google Scholar

145 See generally Chafee, supra note 41, at 36–140, 285–305.Google Scholar

146 See, e.g., Mills v. Alabama, 384 U.S. 214, 219 (1966); New York Times Co. v. United States, 403 U.S. 713, 716–17 (1971) (Black, J.); Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 165–69 (1973) (Douglas, J.). In a brief speech delivered at the Yale Law School, Justice Stewart expressed the view that “[t]he primary purpose of the constitutional guarantee of a free press was … to create a fourth institution outside the Government as an additional check on the three official branches.” Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 634 (1975). The thrust of Justice Stewart's remarks, however, was not that the checking value should be a major component in a cognate theory of the First Amendment encompassing the speech, press, and assembly clauses, but rather that the free-press clause embodies different concerns than the other clauses because it is grounded in a view about the institutional checking function of the organized press. Another allusion to the checking value can be found in Professor Bickel's rambling, thought-provoking essay, Domesticated Civil Disobedience: The First Amendment, from Sullivan to the Pentagon Papers, in Alexander M. Bickel, The Morality of Consent (New Haven, Conn.: Yale University Press, 1975). In places, Bickel speaks of the press as part of the system of checks and balances and of free speech as a form of “domesticated” opposition to government. Id. at 57, 86–87. More often, however, he invokes the self-government and diversity values to explain his view that the essence of the First Amendment lies in the maintenance of a creative tension between social forces. Id. at 62, 65–66, 77–78, 80–82. In his careful formulation of a general theory of free expression, Benjamin DuVal refers in passing to the argument that freedom of expression can serve as a safeguard against bad rulers. DuVal, supra note 100, at 198. DuVal does not develop this theme, however, because his general theory is based on a variant of the diversity value.Google Scholar

147 Beauharnais v. Illinois, 343 U.S. 250, 255–56 (1952).Google Scholar

148 New York Times v. Sullivan, 376 U.S. 254 (1964).Google Scholar

149 Harry Kalven, Jr., The New York Times Case: A Note on “The Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 196–97.CrossRefGoogle Scholar

150 376 U.S. 254, 269 (1964).Google Scholar

151 Id. at 273–77. See Brief for Petitioner, at 10–13.Google Scholar

152 See text accompanying notes 59–66 supra.Google Scholar

153 376 U.S. at 275.Google Scholar

154 Justices Black, Douglas, and Goldberg.Google Scholar

155 Kalven, supra note 149.Google Scholar

156 Id. at 208–9.Google Scholar

157 Id. at 205.Google Scholar

158 Harry Kalven, Jr., The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup. Ct. Rev. 267.CrossRefGoogle Scholar

159 Kalven, supra note 149, at 221.Google Scholar

160 Time, Inc. v. Hill, 385 U.S. 374 (1967).Google Scholar

161 The “false-light” privacy tort compensates for injuries suffered by persons who have been portrayed to the public in a false light even though the statements made about them were not defamatory. See William L. Prosser, Handbook of the Law of Torts 812–14 (4th ed. St. Paul: West Publishing Co., 1971).Google Scholar

162 Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).Google Scholar

163 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).Google Scholar

164 The holding in Hill was not necessarily controlling on this point because the law of defamation might be thought to protect more significant interests than the false-light privacy tort, and hence to weigh more heavily in the constitutional balance. On the insubstantiality of the interests protected by the false-light privacy tort, see Harry Kalven, Jr., Privacy in Tort Law—Were Warren and Brandeis Wrong? 31 Law & Contemp. Prob. 326 (1966).Google Scholar

165 Chief Justice Warren and Justices Brennan and White. Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).Google Scholar

166 Id. at 154. The Harlan opinion was joined by Justices Clark, Stewart, and Fortas.Google Scholar

167 Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970).Google Scholar

168 See Charles O. Gregory and Harry Kalven, Jr., Cases and Materials on Torts 1024 (2d ed. Boston: Little, Brown & Co., 1969).Google Scholar

169 398 U.S. 6, 23 (1970).Google Scholar

170 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971).Google Scholar

171 Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).Google Scholar

172 Id. at 41.Google Scholar

173 Id. at 61.Google Scholar

174 Id. at 82. Justice Harlan's reason for limiting the damages recoverable in defamation cases was different and unrelated to the checking value. See text preceding note 195 infra.Google Scholar

175 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).Google Scholar

176 Id. at 353–54.Google Scholar

177 The majority opinion expressly reserved the question whether punitive or presumed damages might be awarded in a case in which the defendant was shown to have published with knowledge of the falsity of his statements or reckless disregard for the truth. Id. at 349.Google Scholar

178 Id. at 347.Google Scholar

179 Differences in the level of privilege available to defendants turn on the Court's assessment of the strength of the claims to compensation presented by the various categories of plaintiffs. Similarly, restrictions on damages are based primarily on the Court's judgment regarding which types of damages serve legitimate regulatory interests.Google Scholar

180 Gertz v. Robert Welch, Inc., 418 U.S. 323, 387 (1974).Google Scholar

181 Id. at 400.Google Scholar

182 See text accompanying note 173 supra.Google Scholar

183 Time, Inc. v. Firestone, 424 U.S. 448 (1976).Google Scholar

184 Id. at 456. In rejecting the petitioner's argument on this point, the Court interpreted narrowly its decision the previous term in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), which held, in Justice Rehnquist's words, “that the Constitution precludes States from imposing civil liability based upon the publication of truthful information contained in official court records open to public inspection.” Time, Inc. v. Firestone, 424 U.S. 448, 455 (1976).Google Scholar

185 424 U.S. at 478.Google Scholar

186 Justice Black's concurring opinion contained one “cf.” reference to Meiklejohn in a footnote. New York Times v. Sullivan, 376 U.S. 254, 297 n.6 (1964). Justice Brennan's opinion cited and quoted many other scholars: e.g., John Stuart Mill, John Milton, Zechariah Chafee, Thomas Cooley, and Leonard Levy.Google Scholar

187 The idea that the rejection of seditious libel should be a central principle of First Amendment interpretation was a key theme of the Wechsler brief. See Brief for Petitioner, at 10–13, New York Times v. Sullivan, 376 U.S. 254 (1964).Google Scholar

188 See text accompanying note 159 supra.Google Scholar

189 The uses to which the crime of seditious libel was put in England are described briefly in Siebert, supra note 27, at 269–75, 380–92. Fuller accounts can be found in 10 William Holds-worth, A History of English Law 673–96 (London: Methuen & Co., 1966), and 2 Thomas Erskine May, Constitutional History of England: Since the Accession of George the Third 1–123 (London: Longman's, Green & Co., 1912). The impact of this history on American libertarian thought can be seen in the several passages in opposition to the Sedition Act quoted in Levy, supra note 28, at 249–309.Google Scholar

190 Rosenblatt v. Baer, 383 U.S. 75, 84–87 (1966).Google Scholar

191 Curtis Publishing Co. v. Butts, 388 U.S. 130, 154 (1967).Google Scholar

192 Rosenbloom v. Metromedia, 403 U.S. 29, 61 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323, 387 (1974).Google Scholar

193 Rosenbloom v. Metromedia, 403 U.S. 29, 66–68, 72–76, 82–87 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349–50 (1974).Google Scholar

194 403 U.S. at 66.Google Scholar

195 Id. at 72–76.Google Scholar

196 Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974).Google Scholar

197 See Siebert, supra note 27, at 305–45. The American revolutionaries were much influenced by the experience in England under Walpole. Bailyn, supra note 28, at 48–51.Google Scholar

198 See generally Edmund S. Morgan & Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution (New York: Collier Books, 1953).Google Scholar

199 His classic statement is Federalist No. 10.Google Scholar

200 See Kalven, supra note 149, at 197–200.Google Scholar

201 The Firestone holding can be reconciled with the checking value on the ground that a two-sentence item in a gossip column is not the kind of report of an official proceeding that plays any significant part in the checking function. But the majority opinion in Firestone did not invoke this argument and seemed to indicate that the Times privilege would not be available to a news organization sued by a private individual for statements made in a detailed story about the operations of a court system.Google Scholar

202 See text preceding note 179 supra.Google Scholar

203 Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Rosenbloom v. Metromedia, 403 U.S. 29 (1971); cf. Gertz v. Robert Welch, Inc. 418 U.S. 323, 353 (1974).Google Scholar

204 Chief Justice Burger joined the plurality opinion in Rosenbloom (see text following note 171 supra), then wrote a dissenting opinion in Gertz (418 U.S. at 354) that is flatly inconsistent with the plurality's doctrine in Rosenbloom. Justice White's dissent in Gertz is also hard to square with his opinion in Rosenbloom. See text at note 182 supra. In addition, Justices Harlan, Marshall, and Stewart took positions in Rosenbloom quite different from those they had adopted prior to that time.Google Scholar

205 See Kalven, supra note 149, at 200.Google Scholar

206 Meiklejohn believes that although not all utterance is protected by the First Amendment, all speech that is part of the process of self-government is absolutely protected. See Meiklejohn, supra note 113, at 259.Google Scholar

207 New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).Google Scholar

208 Garrison v. Louisiana, 379 U.S. 64, 74 (1964).Google Scholar

209 St. Amant v. Thompson, 390 U.S. 727, 731 (1968).Google Scholar

210 Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).Google Scholar

211 Id. at 154. This is not synonymous with rebuttal opportunities, for an otherwise obscure person would have excellent rebuttal opportunities if he were the subject of a story that for a time commanded the continuing attention of the media.Google Scholar

212 388 U.S. 130, 164 (1967).Google Scholar

213 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).Google Scholar

214 Id. at 351.Google Scholar

215 Time, Inc. v. Firestone, 424 U.S. 448, 453 (1976).Google Scholar

216 On the problems inherent in the Court's concept of “public figure,” see George C. Christie, Injury to Reputation and the Constitution: Confusion amid Conflicting Approaches, 75 Mich. L. Rev. 43, 49–50 (1976).Google Scholar

217 Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967). Justice Harlan did not discuss in Butts what standard of care is appropriate for libel suits brought by private individuals, but in Time, Inc. v. Hill, 385 U.S. 374, 409, he argued that “a duty of making reasonable investigation of the underlying facts” should govern false-light privacy actions by private individuals.Google Scholar

218 The phrase Justice Harlan used in Butts to describe the standard he would apply in cases brought by “public figures” was: “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” 388 U.S. 130, 155 (1967). Kalven thought this amounted to gross negligence. Kalven, supra note 158, at 298.Google Scholar

219 This would depend on whether one considered the two-sentence gossip-column report of a divorce decree to be an article about the conduct of a public official. See note 201 supra.Google Scholar

220 See pp. 542–43 supra.Google Scholar

221 David A. Anderson, Libel and Press Self-Censorship, 53 Tex. L. Rev. 422, 453–56 (1975).Google Scholar

222 See p. 547 supra.Google Scholar

223 Of course, one who favors an unqualified privilege against defamation liability for a certain category of communication need worry about limitations on damages only as a fallback strategy of protection.Google Scholar

224 Special restrictions applicable only to the most favored category of communication might take the form of a disallowance of recovery for any injury other than harm to reputation, a requirement that pecuniary loss be shown, a prohibition on recovery for damages suffered by the plaintiff not as a unique object of scorn but as a member of a defamed group, a fixed ceiling on the amount that can be recovered for any single communication, and independent appellate review as a matter of “constitutional fact” regarding the propriety of the amount of damages awarded. Respect for the checking value might even lead one to prohibit any damage award for a defamatory communication about official behavior if the defendant retracts the story or submits to a declaratory judgment proceeding in which the plaintiff can obtain formal vindication though not monetary compensation. But see text accompanying note 233 infra.Google Scholar

225 Sometimes a source whose testimony would establish that the journalist had a basis for his story will have demanded confidentiality as a condition for cooperating with the journalist.Google Scholar

226 Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).Google Scholar

227 See pp. 623, 629 infra.Google Scholar

228 The defamation that led to New York Times v. Sullivan was contained in a political advertisement purchased by a number of civil rights organizations.Google Scholar

229 See note 168 supra.Google Scholar

230 See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253–54 (1974), holding a publisher liable for defamatory statements made in a Sunday magazine feature article by a reporter whose regular employment was for the daily newspaper put out by the publisher. Also, the Court in Gertz seems to have proceeded on the assumption that a magazine publisher is not vicariously liable for the state of mind of a free-lance writer who was a regular contributor to the magazine and who was commissioned by the publisher to write the article that gave rise to the litigation. The Court referred only to the state of mind of the magazine's managing editor. Gertz v. Robert Welch, Inc., 418 U.S. 323, 328 (1974).Google Scholar

231 A discussion of the provisions in a number of European and South American countries is contained in Richard C. Donnelley, The Right of Reply: An Alternative to an Action for Libel, 34 Va. L. Rev. 867, 884–91 (1948).CrossRefGoogle Scholar

232 Joel D. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1431–32 (1975).Google Scholar

233 See Harry Kalven, Jr., If This Be Asymmetry, Make the Most of It! Center Magazine, May/June 1973, at 36–37: What emerges, then, from reflections about the underlying rationale for freedom of speech seems to me quite congenial to the idea of deliberate asymmetry. Free, robust criticism of government, its officers, and its policy is the essence of the democratic dialectic-of “the belief,” again to quote Brandeis, “in the power of reason as applied through public discussion.” The government cannot reciprocally criticize the performance of the press, its officers, and its policies without its criticism carrying implications of power and coercion. The government simply cannot be another discussant of the press's performance. Whether it will it or not, it is a critic who carries the threat of the censor and more often than not it wills it. Nor is it at all clear that its voice will be needed; surely there will be others to champion its view of the performance of the press. Id. at 37.Google Scholar

234 Infra pp. 611–31. See especially p. 628.Google Scholar

235 Gertz v. Robert Welch, Inc., 418 U.S. 323, 332 (1974). The Court introduced its opinion as follows: “We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen.”Id. at 325 (emphasis added).Google Scholar

236 See text at note 227 supra.Google Scholar

237 For example, the claim that news reporters have a constitutional privilege not to disclose confidential sources was apparently made for the first time in 1958. Branzburg v. Hayes, 408 U.S. 665, 685–86 (1972).Google Scholar

238 Id. at 665. In Zemel v. Rusk, 381 U.S. 1 (1965), the Court rejected the claim of a nonjournalist who contended that he had a First Amendment right to a passport permitting travel to Cuba because visiting that country would help him to inform himself about United States foreign policy.Google Scholar

239 408 U.S. at 707.Google Scholar

240 Id. at 682, 690, 693–95, 698–99, 702, 706–7.Google Scholar

241 Id. at 693–95. The record in the case contained many affidavits of newsmen describing their experiences and opinions regarding the deleterious effect subpoenas could have on sources. Appendix, at 22–61, United States v. Caldwell, No. 70–57, rev. sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972). This almost surely represents the most elaborate documentation to date in a record of the “chilling-effect” phenomenon. Also, in my empirical study of over 1,000 journalists, I found that certain valuable reporting efforts are indeed adversely affected by the subpoena threat, even though the majority of journalistic endeavors are not. Blasi, supra note 78. Compare the Court's willingness in other cases on much less evidence to fashion doctrine around the fear of a chilling effect. E.g., New York Times v. Sullivan, 376 U.S. 254, 277–78 (1964); NAACP v. Alabama, 357 U.S. 449, 461–66 (1958); Elfbrandt v. Russell, 384 U.S. 11, 16–19 (1966). In his dissent in Branzburg, Justice Stewart criticized the Court's double standard regarding proof of a chilling effect. 408 U.S. at 733–36.Google Scholar

242 408 U.S. at 684–85.Google Scholar

243 Caldwell and Pappas. Pappas was permitted to spend a night at a Black Panther head-quarters only because his hosts feared a police raid and wanted a neutral observer present. Appendix, at 4, In re Pappas, No. 70–94, aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972). Branzburg wrote stories on drug use in the Louisville and Lexington areas.Google Scholar

244 408 U.S. at 695.Google Scholar

245 Id. at 692, 695, 697–98.Google Scholar

246 Id. at 697.Google Scholar

247 Id. at 698.Google Scholar

248 Id. at 709.Google Scholar

249 The interpretation of Branzburg in the lower courts is traced in Donna M. Murasky, The Journalist's Privilege: Branzburg and Its Aftermath, 52 Tex. L. Rev. 829, 878–915 (1975).Google Scholar

250 408 U.S. at 714–15.Google Scholar

251 Id.Google Scholar

252 Id. at 722.Google Scholar

253 Id.Google Scholar

254 Id. at 736.Google Scholar

255 Id. at 743.Google Scholar

256 Pell v. Procunier, 417 U.S. 817 (1974).Google Scholar

257 Saxbe v. Washington Post, 417 U.S. 843 (1974).Google Scholar

258 417 U.S. at 834.Google Scholar

259 Justice Stewart joined the Marshall opinion in Rosenbloom, which spoke of the need for a “free and vigorous press” but did not specify exactly why such a press is important. 403 U.S. at 82. On the failure of the Stewart opinion in Branzburg to make clear its philosophical underpinnings, see page 595 supra.Google Scholar

260 Another aspect of the Stewart opinions in the two prisoner-interview cases demonstrates how little value the majority accorded the newsgathering interest in this context. The records in the cases presented impressive testimony regarding the superiority of face-to-face interviews as a means of gaining a true picture of prison conditions. See Justice Powell's dissenting opinion in Saxbe v. Washington Post, 417 U.S. 850, 853–56, and authorities cited therein. Yet Justice Stewart devalued the journalists' claims on the ground that there exist other possible sources of information about prisons, such as letters from inmates, interviews with persons recently released from prison, and guided tours of correctional facilities. This argument based on alternative means is rather unconvincing in this particular context. More important, it is an argument that traditionally has been considered beside the point when fully valued First Amendment claims are at issue. See, e.g., Schneider v. Irvington, 308 U.S. 147, 163 (1939); Cohen v. California, 403 U.S. 15, 24 (1971). But see Lloyd Corp. v. Tanner, 407 U.S. 551, 566–67 (1972).Google Scholar

261 See, e.g., Branzburg v. Hayes, 408 U.S. at 721; Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. at 162.Google Scholar

262 417 U.S. at 839–40.Google Scholar

263 Id. at 862.Google Scholar

264 Id. at 862–64.Google Scholar

265 See generally Gerald Gunther, In Search of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 Stan. L. Rev. 1001 (1972).CrossRefGoogle Scholar

266 Mills v. Alabama, 384 U.S. 214, 219 (1966), quoted at 417 U.S. 863–64.Google Scholar

267 See text at note 254 supra.Google Scholar

268 Branzburg v. Hayes, 408 U.S. at 731.Google Scholar

269 This is a point on which a number of journalists whom I have interviewed feel quite strongly. See Blasi, supra note 78, at 241.Google Scholar

270 408 U.S. at 725.Google Scholar

271 417 U.S. at 861.Google Scholar

272 See note 259 supra.Google Scholar

273 Even the aggressively argued majority opinion in Branzburg displays this tendency. At one point, Justice White described the Court's holding as highly dependent on the records in the individual cases: “On the records now before us, we perceive no basis [for establishing a news reporter's privilege].” 408 U.S. at 690. He also implied that the Branzburg holding should have few implications for press-subpoena disputes concerning civil and criminal trials and legislative investigations. Id. at 702.Google Scholar

274 See text at note 244 supra.Google Scholar

275 See text at note 269 supra.Google Scholar

276 See Blasi, supra note 78, at 265–66.Google Scholar

277 In addition, many considerations unrelated to the checking value inform my views on this issue. See generally Vincent Blasi, Press Subpoenas: An Empirical and Legal Analysis (Washington, D.C.: Reporters' Committee For Freedom of the Press, 1972).Google Scholar

278 Most news sources cooperate with reporters on the basis of unspoken feelings of trust, not specific promises regarding confidentiality. Public employee news sources, however, tend to desire more explicit understandings about the terms of an interview. See Blasi, supra note 78, at 243.Google Scholar

279 A larger category of relationships for which an unusually protective privilege might be appropriate would include all sources who actually generate published stories discussing, at least as a minor theme, the actions or derelictions of public officials; the relationships at issue in the Caldwell and Branzburg cases answer to this description. An even more expansive category would include all relationships that either have generated information about government behavior or were established by the reporter in the hope that they would produce such information. I believe any testimonial privilege should be formulated so as to minimize the amount of litigation over its applicability. Accordingly, I favor an uncomplicated formulation that employs “bright-line” standards wherever possible, and hence would draw the line at those source relationships that involve public employees, a category not likely to generate many difficult questions of application.Google Scholar

280 See Blasi, supra note 277, pp. 39–41, 146–95.Google Scholar

281 In New York Times Co. v. United States, 403 U.S. 727, 730 (1971), Justice Stewart adopted for the prior-restraint issue presented by that case a standard that is similar to the one I think appropriate for this type of press-subpoena dispute. Stewart concluded that the standard had not been met by the government's proof in the case.Google Scholar

282 See Farr v. Superior Court, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 (1971), cert. denied 409 U.S. 1011 (1972).Google Scholar

283 See Schmidt, supra note 101, at 38.Google Scholar

284 See Barron, supra note 101; Thomas I. Emerson, The System of Freedom of Expression 627–73 (New York: Random House, 1970).Google Scholar

285 See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 369 (1969).Google Scholar

286 See, e.g., H.R. 18927, 91st Cong., 2d Sess. (1970); Reporters' Committee for Freedom of the Press, Press Censorship Newsletter 10, Sept.-Oct. 1976, at 121; id., Press Censorship Newsletter 8, Oct.-Nov. 1975, at 122–25.Google Scholar

287 See authorities collected in David L. Lange, The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment, 52 N.C.L. Rev. 1 (1973).Google Scholar

288 395 U.S. 367 (1969).Google Scholar

289 Mr. Justice Douglas did not participate in the decision of the case.Google Scholar

290 395 U.S. at 386.Google Scholar

291 Id. at 390.Google Scholar

292 Id.Google Scholar

293 Id. at 392.Google Scholar

294 412 U.S. 94 (1973).Google Scholar

295 Only Justices Brennan and Marshall would have granted the petitioners' claims.Google Scholar

296 Justice Douglas concurred in the result on this point but did not join the Burger opinion.Google Scholar

297 Justices Burger and Rehnquist rejected the petitioners' First Amendment claims on the merits and also found the First Amendment inapplicable for lack of “governmental action.” Justice Stewart joined the part of the Burger opinion which held there was no governmental action but declined to join the part of the opinion which addressed the merits of the First Amendment issue.Google Scholar

298 The Burger opinion did not declare explicitly that the concept of journalistic independence is rooted in the First Amendment. One could read the Chief Justice narrowly to mean only that journalistic independence is a congressional policy, subject to revision, which prevails over whatever values are implicated in the constitutional claims of outsiders to purchase direct access to broadcast audiences. At several points in the opinion, however, Burger spoke of “balancing the various First Amendment interests involved” and of “the historic aversion to censorship” that led Congress to favor “a substantial measure of independence for the broadcast licensee.” Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 102, 116 (1973). Also, the opinion reserved judgment on the issue whether an FCC decision to require the sale of time for political advertisements would violate the First Amendment rights of broad-casters, thus suggesting that the concept of journalistic independence was regarded by the majority as an expression of constitutional values capable of prevailing over a congressional or administrative policy. On the whole, it seems likely that the Chief Justice and those who joined his opinion had in mind some notion of constitutional, rather than merely statutory, protection for the independence of licensees.Google Scholar

299 Justices Rehnquist and Stewart.Google Scholar

300 See text at note 292 supra.Google Scholar

301 412 U.S. at 124.Google Scholar

302 Id. at.126.Google Scholar

303 Id. at.126–27.Google Scholar

304 Id. at.145.Google Scholar

305 Id. at.145–46.Google Scholar

306 Id. at 138.Google Scholar

307 Id. at 147.Google Scholar

308 See also Branzburg v. Hayes, 408 U.S. 665, 711 (1972); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969); Miller v. California, 413 U.S. 15, 37 (1973).Google Scholar

309 412 U.S. at 162.Google Scholar

310 403 U.S. 713, 717 (1971), quoted at 412 U.S. 165.Google Scholar

311 See pp. 614–15 supra.Google Scholar

312 412 U.S. at 173.Google Scholar

313 Id. at.184.Google Scholar

314 Brennan gave several reasons for this conclusion. First, the economics of broadcasting makes it unlikely that extreme or immoderate views will be included in the “balanced” coverage produced by licensees: “Stated simply, angry customers are not good customers.” Also, and here he quoted John Stuart Mill, listeners must have the opportunity to hear opposing arguments directly “from persons who actually believe them; who defend them in earnest, and do their very utmost for them.” Brennan demurred from the suggestion that professional editing can serve this need sufficiently: “the relegation of an individual's views to such tightly controlled formats as the news, documentaries, edited interviews, or panel discussions may tend to minimize, rather than maximize the effectiveness of speech.” Finally, he observed that “balanced” coverage controlled by licensees would be limited to “those views and issues which generally are recognized as ‘newsworthy,’” a category which may exclude “new and generally unperceived ideas and opinions” that the public also needs to hear. 412 U.S. at 187, 189, 190.Google Scholar

315 Id. at 193.Google Scholar

316 Id. at.199.Google Scholar

317 Id.Google Scholar

318 418 U.S. 241 (1974).Google Scholar

319 Id. at.244–45, n.2.Google Scholar

320 Id. at 254.Google Scholar

321 Id.Google Scholar

322 Id. at 258.Google Scholar

323 Id.Google Scholar

324 Justice White complained, however, that the unavailability of a right of reply for persons criticized in the press underscored the unwisdom of the Court's holding the same day in Gertz., which he viewed as unduly restricting the possibilities of recovery for libel plaintiffs. 418 U.S. 241, 262 (1974).Google Scholar

325 Id. at 259.Google Scholar

326 Mills v. Alabama, 384 U.S. 214, 219 (1966), quoted in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 260 (1974).Google Scholar

327 418 U.S. at 259 (emphasis added).Google Scholar

328 The Chief Justice asserted that the values of diversity and self-government would be ill-served by a regime of programming dominated by “self-appointed editorial commentators.” But if diversity and self-government are to be the sole criteria, Justice Brennan was almost surely correct that in light of the economics of broadcasting and the limitations of the professional perspective, a limited right of direct access would improve the fare of listeners. See note 314 supra. It is noteworthy in this regard that the Chief Justice did not even undertake to answer Justice Brennan on these points.Google Scholar

329 Columbia Broadcasting Sys. v. Democratic Nat'l Comm., 412 U.S. 94, 105 (1973).Google Scholar

330 See, e.g., Dennis v. United States, 341 U.S. 494, 584–91 (1951); Beauharnais v. Illinois, 343 U.S. 250, 285 (1952).Google Scholar

331 Branzburg v. Hayes, 408 U.S. 665, 713 (1972).Google Scholar

332 For a discussion emphasizing other aspects of the evolution of Mr. Justice Douglas's views on the First Amendment, see L. A. Powe, Jr., Evolution to Absolutism: Justice Douglas and the First Amendment, 74 Colum. L. Rev. 371 (1974).CrossRefGoogle Scholar

333 See text at note 319 supra.Google Scholar

334 418 U.S. at 259–60. Compare Justice White's refusal in Branzburg to give much weight to this watchdog concept. 408 U.S. at 695, 697–98.Google Scholar

335 See, e.g., 412 U.S. at 103; 395 U.S. at 379.Google Scholar

336 See, White, supra. note 22, at 119, 291.Google Scholar

337 See, e.g., Oran J. Hale, The Captive Press in the Third Reich (Princeton, N.J.: Princeton University Press, 1964).Google Scholar

338 See generally Louis L. Jaffe, WHDH: The FCC and Broadcasting License Renewals, 82 Harv. L. Rev. 1693 (1969).Google Scholar

339 See p. 585 supra.Google Scholar

340 See text at note 294 supra.Google Scholar

341 Claims such as these are seldom grounded in statute or administrative regulation; they are typically based on contentions regarding the affirmative requirements of the First Amendment. Because this is so, these claims are complicated by the question whether a privately owned media outlet is subject at all to the requirements of the First Amendment, the so-called state-action issue. No doubt news organizations would enjoy more autonomy if their editorial decisions were in no wise subject to the constraints of the First Amendment. I do not believe, however, that such a complete immunity from First Amendment standards is necessary before news organizations can play an effective part in the checking process. Here again, the conception of journalistic autonomy that stems from the checking value is less absolute than that which is based on the analogy from individual autonomy. Moreover, as mentioned above, the checking value can be well served by access regulations that enable outsiders to disseminate unconventional, “extreme” criticisms of government. See p. 623 supra. If, therefore, as I believe to be the case, conventional analysis of the state-action question can support the conclusion that the editorial decisions of mass-media outlets are sufficiently analogous to, intertwined with, or supported by the exercise of power by the state to make them subject to First Amendment standards, respect for the concept of journalistic autonomy should not cause one to reject this conclusion. On this point, see Justice Brennan's opinion in Democratic Nat'l Comm., 412 U.S. at 172–81.Google Scholar

342 The administrative problems presented by access regulation were emphasized by Justice Burger. 412 U.S. at 123–24. For a refutation of the argument that these problems are insuperable, see Justice Brennan's dissent and the authorities cited therein. 412 U.S. at 201–3.Google Scholar

343 Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 Mich. L. Rev. 1 (1976).CrossRefGoogle Scholar

344 See pp. 627–28 supra.Google Scholar

345 See pp. 552–53, 558–59, 581–83, 603, 606, 608, 609–10, 625 supra.Google Scholar

346 See pp. 541–42, 563–64, 577–78, 587, 604, 623–25 supra.Google Scholar

347 See pp. 553–54, 563, 603, 606, 608, 609 supra.Google Scholar

348 See pp. 603, 623–26, 629 supra.Google Scholar

349 See pp. 627–28 supra.Google Scholar

350 See pp. 587, 603, 624–25, 629 supra.Google Scholar

351 See the materials collected in William B. Lockhart, Yale Kamisar, & Jesse H. Choper, Constitutional Rights and Liberties 626–64 (Annual American Casebook Series) (4th ed. St. Paul: West Publishing Co., 1975). Recent cases in which the Supreme Court has reaffirmed the importance of the prior-restraint concept include Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); New York Times Co. v. United States, 403 U.S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).Google Scholar

352 See also the argument made in Harry Kalven, Jr., Foreword: Even When a Nation Is at War, 85 Harv. L. Rev. 3, 34 (1971), that the disallowance of prior restraint facilitates civil disobedience. A proponent of the checking value might regard the facilitation of civil disobedience to be a major consideration. See. p. 648 infra.Google Scholar

353 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).Google Scholar

354 This proposition is not self-evident. Milton's classic polemic against prior restraint, the Areopagitica. (1644), reprinted in Douglas Bush, ed., The Portable Milton 151 (New York: Viking Press, 1949), was directed at licensing systems. Many of Milton's arguments do not apply to injunctions issued by judges at the instigation of the complaining party.Google Scholar

355 283 U.S. at 717–22.Google Scholar

356 See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).Google Scholar

357 See generally Comment, Government Employee Disclosures of Agency Wrongdoing: Protecting the Right to Blow the Whistle, 42 U. Chi. L. Rev. 530 (1975).CrossRefGoogle Scholar

358 Pickering v. Board of Educ., 391 U.S. 563 (1968).Google Scholar

359 But see City of Madison, Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm'n, 45 U.S.L.W. 4043 (1976).Google Scholar

360 See, e.g., Abbott v. Thetford, 529 F.2d 695 (5th Cir. 1976); Hanneman v. Breier, 528 F.2d 750 (7th Cir. 1975); Gilbertson v. McAlister, 403 F. Supp. 1 (D. Conn. 1975); Muir v. County Council, 393 F. Supp. 915 (D. Del. 1975); Roseman v. Indiana Univ. of Pa., 520 F.2d 1364 (3d Cir. 1975); Los Angeles Teachers Union v. Los Angeles City Bd. of Educ., 71 Cal. 2d 551, 455 P.2d 827, 78 Cal Rptr. 723 (1969); Watts v. Seward School Bd., 454 P.2d 732 (Alaska 1969); Starsky v. Williams, 353 F. Supp. 900 (D. Ariz. 1972); Meehan v. Macy, 425 F.2d 469 (D.C. Cir. 1968).Google Scholar

361 United Public Workers of America v. Mitchell, 330 U.S. 75 (1947); United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973). See also Broadrick v. Oklahoma, 413 U.S. 601 (1973), upholding a state statute restricting political involvement by state employees.Google Scholar

362 427 U.S. 347 (1976).Google Scholar

363 On this issue generally, see Comment, Patronage Dismissals: Constitutional Limits and Political Justification, 41 U. Chi. L. Rev. 297 (1974).CrossRefGoogle Scholar

364 The best treatment of this subject of which I am aware is Jerold H. Israel, Elfbrandt v. Russell: The Demise of the Oath? 1966 Sup. Ct. Rev. 193.CrossRefGoogle Scholar

365 Compare United States v. Robel, 389 U.S. 258 (1967).Google Scholar

366 See, e.g., Reporters' Committee for. Freedom of the Press, Press. Censorship Newsletter. No. 10, Sept: Oct. 1976, at 6–36; id., Press Censorship Newsletter No. 9, Apr.-May 1976, at 6–34; id., Press. Censorship Newsletter. No. 8, Oct.-Nov. 1975, at 42–60.Google Scholar

367 Nebraska Press Ass'n v. Stuart, 427 U.S. 539. (1976).Google Scholar

368 Id. at 563–65. See also Sheppard v. Maxwell, 384 U.S. 333, 363. (1966).Google Scholar

369 See the related discussions of implications in this area at pp. 607–8 supra.Google Scholar

370 See, e.g., the cases collected in Lockhart, Kamisar, & Choper, supra note 351, at 1013–67.Google Scholar

371 Buckley v. Valeo, 424 U.S. 1 (1976).CrossRefGoogle Scholar

372 See generally Daniel Polsby, Buckley v. Valeo: The Special Nature of Political Speech, 1976 Sup. Ct. Rev. 1; J. Skelly Wright, Politics and the Constitution: Is Money Speech? 85 Yale L.J. 1001 (1976).Google Scholar

373 In Buckley, the Court invalidated the provision of the Federal Election Campaign Act of 1971 which placed dollar limitations on the overall campaign expenditures of candidates but held that the distribution of public funds to a candidate could be conditioned on the candidate's agreement to abide by overall expenditure limits. 424 U.S. 1, 54–59. A proponent of the checking value should certainly applaud the invalidation of expenditure limitations that bind nonincumbents. Whether expenditure limitations on incumbents should have been struck down, and whether the Court should have upheld the conditioning of public funding for nonincumbents on their acceptance of limitations are, it seems to me, close questions that might be decided either way under the checking value.Google Scholar

374 424 U.S. at 39–51Google Scholar

375 Mills v. Alabama, 384 U.S. 214 (1966).Google Scholar

376 See text at note 266 supra.Google Scholar

377 See Williams v. Rhodes, 393 U.S. 23 (1968); Jenness v. Fortson, 403 U.S. 431 (1971); American Party of Tex. v. White, 415 U.S. 767 (1974); Storer v. Brown, 415 U.S. 724 (1974); Lippitt v. Cipollone, 404 U.S. 1032 (1972).Google Scholar

378 See pp. 625, 629 supra.Google Scholar

379 United States v. O'Brien, 391 U.S. 367 (1968); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969); Street v. New York, 394 U.S. 576 (1969); Smith v. Goguen, 415 U.S. 566 (1974); Spence v. Washington, 418 U.S. 405 (1974). In his casebook, Gunther devotes a subsection to the questions of judicial competence and role raised by the Court's inept performance in this area. See O'Brien–ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;ndash;Tinker–Street as the Culmination of 50 Years of Free Speech Litigation: Some Anxious Thoughts about Unstable Doctrines and Uneven Results on the Warren Court, in Gerald Gunther, Cases and Materials in Constitutional Law 1251–53 (9th ed. Mineola, N.Y.: Foundation Press, 1975). See also John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975).Google Scholar

380 For a thoughtful consideration of these questions see Note, Symbolic Conduct, 68 Colum. L. Rev. 1091 (1968).Google Scholar

381 Cox v. Louisiana, 379 U.S. 536, 555 (1965). See Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 23–25.Google Scholar

382 E.g., Cox v. Louisiana, 379 U.S. 536 (1965); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v. Florida, 385 U.S. 39 (1966); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969). See generally Vincent Blasi, Prior Restraints on Demonstrations, 68 Mich. L. Rev. 1482 (1970).Google Scholar

383 On the hostile-audience problem generally, see Note, Hostile-Audience Confrontations: Police Conduct and First Amendment Rights, 75 Mich. L. Rev. 180 (1976).CrossRefGoogle Scholar

384 I have developed my views on this point in some detail. See Blasi, supra note 382, at 1485–1503, 1510–15.Google Scholar

385 Lehman v. Shaker Heights, 418 U.S. 298 (1974). Compare Cohen v. California, 403 U.S. 15 (1971); Erznoznik v. Jacksonville, 422 U.S. 205 (1975).Google Scholar

386 Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); Hudgens v. NLRB, 96 S. Ct. 1029 (1976).Google Scholar

387 412 U.S. at 127–28.Google Scholar

388 See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).Google Scholar

389 See, e.g., Scoville v. Board of Educ., 425 F.2d 10 (7th Cir. 1970), cert. denied, 400 U.S. 826 (1970).Google Scholar

390 See, e.g., James v. Board of Educ., 461 F.2d 566 (2d Cir. 1972), cert. denied, 409 U.S. 1042 (1972); Russo v. Central School Dist., 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932 (1973).Google Scholar

391 For a comprehensive analysis that reaches a different conclusion, see Stephen R. Goldstein, The Asserted Constitutional Right of Public School Teachers to Determine What They Teach, 124 U. Pa. L. Rev. 1293 (1976).Google Scholar

392 See generally Emerson, supra note 284, at 593–626.Google Scholar

393 See Meyer v. Nebraska, 262 U.S. 390 (1923); Epperson v. Arkansas, 393 U.S. 97 (1968). See also Harry Kalven, Jr., A Commemorative Case Note: Scopes v. State, 27 U. Chi. L. Rev. 505 (1960).Google Scholar

394 See Vincent Blasi, The Newsman's Privilege and the Researcher's Privilege: Some Comparisons, in Paul Nejelski, ed., Social Research in Conflict with Law and Ethics 155 (Cambridge, Mass.: Ballinger Publishing Co., 1976).Google Scholar

395 See Keyishian v. Board of Regents, 385 U.S. 589 (1967).Google Scholar

396 See Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss. 1969).Google Scholar

397 Healy v. James, 408 U.S. 169 (1972).Google Scholar

398 Greer v. Spock, 424 U.S. 828 (1976).Google Scholar

399 Parker v. Levy, 417 U.S. 733 (1974).Google Scholar

400 See Joseph Goldstein, Burke Marshall, & Jack Schwartz, The My Lai Massacre and Its Cover-up: Beyond the Reach of Law? (New York: Free Press, 1976).Google Scholar

401 417 U.S. 733 (1974).Google Scholar

402 424 U.S. 828 (1976).Google Scholar

403 Although there is no general crime of unauthorized disclosure, there are several provisions of the federal criminal code that punish disclosures of certain kinds of specialized information made with the intent to injure the United States. For an exhaustive discussion of these provisions, see Harold Edgar & Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929 (1973).Google Scholar

404 S. 1, 94th Cong., 1st Sess., sec. 1124 (1975).Google Scholar

405 See generally Melville B. Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan. L. Rev. 311 (1974).CrossRefGoogle Scholar

406 See generally Schmidt, supra note 283, at 37–54; Owen, supra note 101.Google Scholar

407 See, e.g., Reporters' Committee For Freedom of the Press, Press Censorship Newsletter No. 9, Apr.-May 1976, at 124–26, 129–31.Google Scholar

408 Note the discussions within the Nixon administration about such retaliation against the Washington Post for its Watergate coverage. The Post owns several broadcast stations. See J. Anthony Lukas, Nightmare: The Underside of the Nixon Years 273–74 (New York: Viking Press, 1976).Google Scholar

409 Meiklejohn, supra note 84, at 37.Google Scholar

410 United States v. Harriss, 347 U.S. 612 (1954).Google Scholar

411 See Time Ran out for Lobby Revision Bill, 32 Cong. Q. Almanac 477–86 (1976).Google Scholar

412 NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of R.R. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); United Transportation Union v. State Bar of Mich., 401 U.S. 576 (1971); Bates v. State Bar of Ariz., 45 U.S.L.W. 4895.Google Scholar

413 See Whitney v. California, 274 U.S. 357, 377 (1927).Google Scholar

414 Abrams v. United States, 250 U.S. 616, 630 (1919).Google Scholar

415 New York Times v. Sullivan, 376 U.S. 254, 270 (1964). See Harry Kalven, Jr., “Uninhibited, Robust, and Wide-Open”: A Note on Free Speech and the Warren Court, 67 Mich. L. Rev. 289 (1968).Google Scholar

416 New York Times Co. v. United States, 403 U.S. 713, 717 (1971). In this passage, I take Justice Black to be articulating a philosophy of the First Amendment which is applicable not only to the freedom of the press but also to the freedoms of speech and assembly. Although the checking value supports the contention that the professional press is entitled to some protections not available to lay speakers, many other considerations bear on the question whether the press clause of the First Amendment should be interpreted independently of the speech and assembly clauses. Thus, in their lively and illuminating exchange on this question, Professors Nimmer and Lange make virtually no reference to the checking value. See Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech? 26 Hastings L.J. 639 (1975); David Lange, The Speech and Press Clauses, 23 U.C.L.A.L. Rev. 77 (1975); Melville B. Nimmer, Speech and Press: A Brief Reply, 23 U.C.L.A.L. Rev. 120 (1975). Conversely, the checking value has many implications for First Amendment interpretation which have nothing to do with the professional press or with the interrelationship among the three clauses that guarantee freedom of expression.Google Scholar