Freedom of the Press: For Whom?

A.J. LIEBLING noted long ago that freedom of the press belongs to the man who owns one. Liebling didn't find that state of affairs to be appropriate, but where is the owner of a major newspaper who would not defend that principle?

Major dailies regularly rail against any attempts by the government to influence the content of their issues. The analogy of a wall that constitutionally stands between church and state has been appropriated by the press to explain what the First Amendment means.

But the recent case involving three students from East Hazelwood High School in Missouri makes the otherwise black and white view of state-press relations somewhat more complicated, for in this instance the state was both owner and editor. The Supreme Court in a 5-3 decision affirmed the right of the principal of the school to prevent the publication of two stories in the school's student newspaper, the Spectrum. The principal felt that the articles concerning teen-age pregnancy and divorce threatened the privacy rights of students quoted in the articles, and he pulled them from the paper.

THE DECISION was met with outrage by the professional press, the Boston Globe heading the attack with a lead editorial echoing Justice Brennan's dissent, which argued that the ruling amounted to an affirmation of thought control.

Justice White's majority opinion does leave open the possibility for broad censorship of student opinion by school officials, and threatens the long established precedent that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." But on the other hand, his ruling can be placed in the tradition of the Court's belief that the content of a publication should be up to the owner of the publication--and that access to that forum should be determined solely by the owners and not the Court.

Beginning from where all First Amendment discussion usually begins in this country, namely who owns the paper, it seems clear that the St. Louis, Missouri School Board was the owner. It created the paper with the intention that the principal of the high school would have authority of pre-publication review. In short, he was to serve as proxy for the school board, making sure that the newspaper did not become a forum for views contrary to the interests of the School Board, which provided 80 percent of the funding for the paper. The students carried editors' titles, but the principal seemed to have been invested with ultimate editorial authority--that was a condition for the paper's existence. If we treat the Hazelwood Spectrum as a newspaper like any newspaper, then control of it would seem to belong to the owner, not the journalists.

HERE LIES the basis for White's distinction from earlier Court decisions concerning student expression. While the school must tolerate student expression, it is not required to promote it. The media's abhorrence of the Fairness Doctrine stems from a similarly negative reading of the First Amendment: just as the state has no right to prevent the expression of views on televison, it should have no right to require their expression. But in this instance, suddenly the enemies of a positive interpretation of the First Amendment demand that news deemed unfit by the owner of a paper (the school board) be forced into publication by the courts in the name of the First Amendment.

The Fairness Doctrine is routinely attacked in the press as having a chilling effect; the argument runs that if both sides of a controversial issue are required to be aired, the issue will instead be avoided entirely. The same kind of critique could be proferred to defend White's ruling, for why would any school board want to create a student newspaper which could be published without any guidance? Wouldn't an affirmation of the student editor's claims ultimately have a chilling affect, reducing the number of school boards which fund high school newspapers?

IN THIS instance, all the arguments which the press generally offers against allowing the Court to require the printing of material that the owner of a paper may not wish to see appear fell by the wayside. Suddenly, the press was commited to a position of allowing diversity of opinion.

Brennan writes that, "The mere fact of school sponsorship does not, as the court suggests, license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic insensitivity."

One might reasonably ask, does individual sponsorship, say by Rupert Murdoch, permit the suppression of viewpoints which he finds disfavorable? Could the First Amendment be meant to make the instrument of the press free?

Faced with a case of the government exercising prior restraint, the press rushed to the defense of its first principles, attacking White's decision. Paradoxically, in this knee-jerk reaction, the press also forgot some of its first principles, for White was articulating a defense of autonomous control by newspaper owners, while Brennan hinted at an interpretation which would undermine the autonomy of the owners.