The First Amendment is alive but today it is far from well

On books

September 05, 1999|By Michael Pakenham

Thomas Jefferson famously excoriated "the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and the mendacious spirit of those who write for them." It is historic fact that he never read a single copy of the National Enquirer.

A huge hunk of American citizenry today harbors similar hostility. Polling data vary, but in some serious samples, well more than half the Americans who are queried say they detest the press -- especially newspapers -- and would like to see the First Amendment's free-press guarantee scrapped or severely limited.

This is worrisome for we who ply this trade. For Jefferson, despite his occasional antipathy toward the press, also recognized its necessity to democracy. He even more famously declared: "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate for a moment to prefer the latter."

There was nothing inconsistent about those positions. For two centuries, Jefferson has been joined by a long line of victims of the press in recognizing this unpleasant truth: Personal abrasion is an inevitable price that must be paid for the sole, single check on government abuse and tyranny that doesn't fall under the control or sanction of government itself.

But lately, much has happened to trammel press freedom. It is fair almost to a certainty to conclude that never in those two centuries has the press in America -- certainly its capacity to combat public abuse of power -- been in such peril as it is today.

Now comes a book that lays out those threats, their origins and the prospects for the near future with concision, even-handedness and accessibility. It is "Don't Shoot the Messenger: How Our Growing Hatred of the Media Threatens Free Speech for All of Us" by Bruce W. Sanford (Free Press, 257 pages, $25).

Sanford, who once was a reporter for the Wall Street Journal, is a very successful lawyer, based in Washington. His practice consists almost entirely of representing newspapers and media interests. He is a partisan, but fair.

The first half of the book, "Origins and Causes," is a selective distillation of American newspaper sensationalism from the late 19th century forward. Much of it would make today's most outrageous excess-merchants blush. Sanford is far from defensive about press failings and excesses.

In the broadest terms, today's threats come from two sources: One is litigation, encouraged by hostile judges and other government authorities. The other is within the management and control of newspapers themselves.

On the side of the official enemies, no force is as mighty as predatory lawsuits that only a generation ago were either purposeless or unprofitable.

Sanford, who knows of what he practices, concludes that: "Next to developing brain cancer or burying a child, about the worst thing that can happen to you at the end of the American century is to get caught and mired in the so-called justice system."

I am painfully aware of the truth of that. I have been a reporter and editor for more than 30 years, many of them editing opinion pages and writing editorials.

When such hostility by aggrieved public officials takes the form of litigation, the costs in lawyers' fees and runaway jury awards can be enormous. The emotional wounds, I can attest, can be excruciating.

One of several defamation cases that I have been involved in focused on a series of six investigative articles -- plus editorials that I had written.

It took 10 full years for the case to go to trial, with lawyers' meters ticking away. Then a jury trial, with more than 30 witnesses, went on for seven weeks. I sat in the courtroom through almost every day of that ordeal.

Eugene Roberts, then executive editor of the Philadelphia Inquirer (later managing editor of the New York Times) and editor of the series, spent six entire days on the witness stand, mainly under blistering attack. Almost every evening, reviewing evidence with him and the lawyers, I watched Roberts almost literally writhe in the pain of what to him, and to me, was the bitterly cruel unfairness of the process.

The jury awarded the plaintiff $4.5 million. The case was appealed and retried seven endless years later. The second trial, in 1990, ended with a verdict of $34 million. In this book, Sanford says ultimately it was settled for $20 million.

Which leads to Sanford's second fear: That the refusal of top management to support often drawn-out and expensive battles with all the resources of their businesses has come to constitute something like a conceding of First Amendment protections. If the press will not do its constitutional duty, why renew its license?

As Sanford defines the core of that concern: "Profit margins, once deemed respectable at 15 percent, have been pushed north of 20 and even 30 percent in order to impress Wall Street analysts, institutional investors and portfolio managers everywhere."

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