FREEDOM OF LIBEL OR LIBEL OF FREEDOM?

James MACE

Democracy has its limitations. Even freedom, the cult of which is at the heart of democracy as we know it, has its limitations. After all, democracy in the classical sense existed only in ancient Greece and the New England town meeting, where once a year or so all the inhabitants are invited to gather and everyone has the right to say his piece, and all decide equally how to handle the business at hand. But when the matter concerns hundreds of thousands or millions of people, this is simply not practical or realistic. It is more precise to speak of the system of the US and Western “democracies” as representative government .

This, however, is not the crux of the issue. The state never grants anybody rights. Citizens themselves assume rights and freedoms and forces the state to recognize them. When the US became independent only white male property owners had the right to vote. It took half a century to make universal (white) manhood suffrage the law throughout the land. Women got the vote only after World War I after decades of struggle by the suffragettes. Blacks, who legally got the vote after the American Civil War, in reality obtained equal voting rights only after the heroic Civil Rights Movement of the 1950s and sixties.

The freedom of the press is at the core of representative self-government, for how can individuals or a people as a whole comes to term with their government, make common decisions, and reach consensus if they cannot openly know and criticize their government? Freedom of the press is a fundamental and inalienable attribute of the contemporary Western world, of the so-called developed democracies.

Freedom of the press is not merely fine words but has its specific content. In the former British colonies of America this content was defined in 1735 and is bound up with the history of John Peter Zenger, whose case influenced the entire subsequent political history of his country and became the basis of the balance between freedom of the press and libel. Without this balance no freedom of the press is possible, because freedom of the press first of all means the right to openly discuss and criticize those in high office.

John Peter Zenger (1697-1746) was a German-American printer and publisher. He emigrated from what is now Bavaria to America in 1710 and worked several years as an apprentice to the Royal Publisher of the colony of New York. In 1725 he opened his own firm and in 1730 published the first arithmetic textbook in the British colonies. In 1733 he founded The New York Weekly Journal with the support of locally influential political figures. Zenger published articles by his supporters, which criticized the Royal Governor of New York. On November 17, 1734, he was arrested and jailed on charges of seditious libel. The Scottish- American lawyer Andrew Hamilton eloquently defended Zenger in his 1735 trial with the then innovative argument that what was published was true and could thus not be libelous. The jury found for the defendant, and this event is considered the beginning of the freedom of the press in what would become the United States.

In 1737 Zenger was appointed public printer of New York and a year later of New Jersey, quite prestigious and profitable posts.

The trial of John Peter Zenger fostered the development of political freedom in the United States by establishing the precedent that citizens have the right to freely criticize their government. It was the most important political trial in that country before its War of Independence. In 1736 Zenger published an account of the trial as a struggle for the freedom of the press, and it was read throughout the colonies and in England itself.

Let us go into more detail. In February 1731 William Cosby was appointed Royal Governor of New York but did not arrive until August 1732. In the interim his functions were carried out by Rip Van Dam, a locally prominent politician. When Cosby arrived, he began to demand that Van Dam hand over half the salary he had received. Since Van Dam was locally quite popular, the new governor knew he had not the slightest chance of winning a jury trial and turned to the colonial Supreme Court, requesting it transform itself into a court of equity, that is, one which did not require a jury and could ignore technical rules in favor of “equity.” Chief Justice Louis Morris, a close ally of Van Dam, ruled that his court could not legally be turned into a court of equity and adjourned the session before the other two justices, allies of Cosby, could protest. Cosby took his revenge in dismissing Morris and replacing him with a young inexperienced judge. Then Morris, Van Dam, and their allies organized a faction to oppose the governor. In November 1733 James Alexander began to edit The New York Weekly Journal , which Zenger printed. The newspaper was humorous, satirical, and philosophical, criticizing the governor plentifully through its subtext, while publishing a very high level of discussion of history and philosophy in defense of the freedom of the press. The editors reprinted current essays by contemporary philosophers against the dangers of tyranny, maintaining that the individual could defend his freedoms only if he had the right to freely print the truth, even if it was critical of the government. At that time the rule was that any criticism of the government threatened the stability of the state, the more so if it were true, for then people would be more likely to believe it. In January 1734 new Chief Justice DeLancy unsuccessfully attempted to indict Zenger before a Grand Jury. In October the governor ordered the issues of the weekly he found offensive burned, and on November 17 Zenger was arrested. The Supreme Justice set his bail at г400 (roughly 100 ounces of gold), ten times the ОmigrО printer's net worth, and he languished behind bars for almost nine months.

Zenger's friends did not expect him to be incarcerated so long, but the government turned to a procedure whereby it could initiate a trial on its own initiative. In April 1735 solicitor Alexander was disbarred from practicing law, but the publisher's court appointed attorney, despite being an ally of the governor, ably defended his client, blocking the Chief Justice from selecting a jury packed with the governor's supporters. Meanwhile, ex-lawyer Alexander traveled to Philadelphia, where he convinced Andrew Hamilton, then the most prominent barrister in the colonies, to take the case. He rejected the then standard defense against libel, that somebody else other then the defendant had published the offensive material. On the contrary, he argued that the defendant had indeed published the material inquestion but that what had been published had been notoriously known to all and sundry as true. Zenger was acquitted. This precedent is embodied in the First Amendment to the US Constitution as “Congress shall make no law abridging the freedom of speech, the press,” etc . In is precisely from the Zenger trial that both citizens and government in the United States gained their understanding of what freedom of the press means.

This does not at all mean that such a freedom was forever and inviolably enshrined. There has always been pressure on the press and the desire to control it, for this would be a direct road to popularity, power, and money. In addition, there are some things no community can allow to be printed like, for example, pedophilia (child pornography). In the First World War agitation against the draft was banned, and in the Second World War there was strict military censorship. During the Vietnam War, however, a group of experts released to the press The Pentagon Papers , a secret history of how the conflict developed, and the government went to court to block publication. But the Supreme Court found that publication would cause no significant harm to the national interest, and the people had the right to know. The book became a bestseller.

Obviously, standards concerning the freedom of the press vary over time. In 1798 Congress passed the Aliens and Sedition Act, now universally considered unconstitutional, and in 1940 the Smith Act banned advocacy of altering the American government through force or violence, using it first against Nazis and especially in the 1950s against Communists. No words and no Constitution can make any people perfect. Yet the enduring tendency in US history has been that the rights of citizens can be limited only when absolutely necessary for the common good. In 1964 the Supreme Court weighed the balance between the laws on libel and First Amendment interests. It found that a public figure suing a newspaper for libel could only collect damages only if he/she could demonstrate that the journalist “maliciously” published the information either knowing it was false or with a reckless disregard as to its veracity. Proving that is almost impossible. In this way American law protects the freedom of the press from state and political pressure and makes it impossible for political forces to manipulate public opinion through the mass media.

Moreover, Americn journalists, despite their professional competitiveness, have a strong consciousness of their common guild and corporative interests. There are states with so-called shield laws where under no circumstances can a journalist be compelled to reveal his/her sources of information, and their are states, which allow circumstances where a court can order a journalist to reveal confidential information, say, concerning a group of terrorists or other particularly dangerous criminals. As a rule, American journalists believe that if they reveal a source, to whom they had promised anonymity, nobody will ever trust them again. And if a journalist is jailed for refusing to reveal an anonymous source, he is set free a national hero of all American journalists.

Controversy continues on this issue, but in a representative democracy controversy is unending. In an open society, accord and harmony are myths. Sometimes4 conflict is productive: through conflict comes change and maybe even progress. In the contemporary USA all kinds of political trend from Nazis and the Ku-Klux-Clan to all sorts of leftist revolutionaries have the right to exist. Banning them, holds American political culture, would simply make the disease less visible and more dangerous. It is far better, Americans assume, that people see, understand, and become conscious of what something is with complete information about it. In this sense the mass media plays a pivotal role. As a result Americans can find out for themselves what is crap from how it smells.

For example, some years ago in the Chicago suburb of Skokie, Illinois, a predominantly Jewish suburb with many Holocaust survivors, the American Nazi Party demanded a permit to hold a demonstration complete with Storm Trooper brown shirts and swastikas. The local government, of course, denied permission. The Nazis then turned to the American Civil Liberties Union (an organization of, incidentally, mainly Jewish lawyers, who defend Constitutional issues). The case went all the way to the US Supreme Court, and the Nazis (i.e., the ACLU) won. The Nazis had their demonstration, spouting their anti-Semitic and racist slogans, protected by a police cordon separating them from outraged local citizens with signs denouncing the fascists. But in the end everyone went home peacefully, and the Nazis failed to score any sort of public triumph. In this case the mass media played the role of a megaphone, echoing the sentiments of society as a whole.

Other Western states like Canada have laws, as does Ukraine, against inflaming national hatred, but such laws are notoriously hard to enforce. Here in Ukraine we all remember the case of one Ukrainian journalist who called upon the proletariat to hang Jews, Russians, and Communists from the nearest tree branch. Most writers and journalists, without at all agreeing with him, defended him. The US has chosen the route of maximum openness of its political process and field of information on the assumption that this is the only way to combat the social diseases that exist.

The USA has extremely strong laws mandating government transparency, and most Congressional committee and subcommittee hearings are open to the public, meaning that anyone can come and quietly sit and listen to how laws are made. Plenary sessions of both the House and Senate are televised on cable. To be sure, there are closed sessions and committee sessions on things like intelligence, nuclear defense, and such, but as a rule the intent is that government should be as open as possible. A transcript of Congressional plenary sessions, The Congressional Record , has been published daily since 1789, and Congressional hearing are published as well. Anyone can subscribe, and copies can be consulted in depositories of federal documents, of which each state has at least one. Everything possible is done so that people have the chance to know how they are governed.

Certainly the US mass media has its problems. In Governor Cosby's time, as in Ukraine today, the press was primarily party oriented, the organ of one political group or another. Today it is business. The press, radio, and television are completely commercialized. Television, for example, has no right to refuse to carry any political figure if he/she wants to buy a paid political advertisement. Advertisement is the basic financial motive force of all the American mass media today, also turning the right to say one's piece into a commodity. There is hardly any publication that can now support itself without advertising, the price of which depends on the number of its readers. One can decide for oneself whether this is good or bad, but it does guarantee diversity. In truth, the free press in America is not now living through its best days. Practically all periodicals have their financial problems from time to time. Even cities with a million inhabitants have problems supporting more than one newspaper, New York, which once had dozens of newspapers, now has but three. But in New York cable television subscribers can choose from over 100 channels. In general, in our times print media are giving way to electronic ones. This is unfortunate, for television is far more superficial, albeit more mobile and faster in providing information. However, the Internet provides such a wealth of varied information and ideas that it could well one day fulfill the role of such prestigious newspapers as The New York Times and Frankfurter Allgemeine Zeitung .

Today in Ukraine the informational theater of operations is even weaker than it was in the Soviet period. The press run of traditional publications has fallen catastrophically under conditions where poverty has forced many citizens to chose between a newspaper and a loaf of bread. Not so long ago Minister of Internal Affairs Kravchenko used libel law against Kievskie vedomosti exactly like Royal Governor Cosby attempted to do against John Peter Zenger in 1735 (in the sense that nobody really disputed the veracity of the published information but only argued that it had damaged the honor and reputation of the honorable minister). The Day has more than once reported on the harassment of independent television companies like STB. Basic political events, like why the SDPU(o) suddenly switched from being a party of “constructive opposition” to a party of power, remain in opacity and cannot be understood, because nobody can publicly say with whom and about what, say, Messrs. Medvedchuk and Surkis reached agreement and what they got in return or, for that matter, what exactly Mr. Berezovsky is getting for his services as image- maker to the incumbent President. It seems that here everything is being done to shrink the information space, the theater of different ideas, in other words, to do everything possible so that representative government becomes the self- government and representation of only those who have good and close relations with the government.

One is amazed at how any criticism of current leaders calls forth such a fiery reaction and immediate repressive measures. If there is freedom of the press, any newspaper has the right to support one candidate or another. It is the business of its editorial policy and its journalists. In America there are newspapers and even television programs, which brutally criticize Clinton, and those that support him. This is considered a normal state of affairs even by those temporarily in power (under representative government all power is temporary). Any other state of affairs would call forth fear and loathing in one and all. And should even the President take such offense at such criticism that he attempted to forcibly close a press organ, he would immediately be impeached and removed from office. It would simply be his political death. Suffice it to recall Watergate, when rank and file journalists kept digging until the President himself was forced from office.

Of course, the current economic capabilities of the US and Ukraine differ. Ukraine's tremendous economic potential so far goes unrealized. In the US there is a critical mass of people, who are able to put money into serious mass media projects, either as investors or philanthropists. However, the intellectual potential of Ukraine is no less than that of any country. There are simply brilliant journalists, who in terms of providing information and analysis are inferior to none in the world. Unfortunately, space allows mentioning but a few. Oleksandr Tkachenko and Volodymyr Skachko put together the excellent Pisliamova (Afterword) television program, which was forced to close, and its creators were forced to seek employment elsewhere. Vseukrainskiye vedomosti, Pravda Ukrainy, Delovaya nedelia , and Polityka have all closed. Vitaly Kotsiuk was killed under mysterious circumstances. Mariya Chorna was found hanged. There seem to always be reports of tragic accidents happening to journalists. One is beaten and another fired. There are countless examples, and the picture is bleak. Such nationally oriented newspapers as Literaturna Ukrayina. Holos Prosvity, Ukrayinske slovo , and Narodna hazeta live through continuous financial travails. Ukrainian literary journals have it even harder. The press run of Suchasnist is less than it was in emigration. Try to find Political Thought , a political science journal published in Ukrainian, Russian, and English. Its worthy competitor, Politychni chytannia , has simply ceased publication. Scholars from the Academy of Sciences publish books with a press run of 200, 50 for the authors and the rest for distribution, which simply does not happen. Under such circumstances what kind of exchange of ideas or discourse can take place?

If we want the rational intellectual, cultural, or political discourse of a progressive country, we have to first of all defend the theater of operations of that discourse. This primarily means defending the freedom of expression, the freedom of the press. Without such freedoms America would never have become what it is. With its rich natural and human resources, Ukraine has every chance to be no worse, albeit different. Even better. Obviously, all who live in these times of mortal crisis dream of living like a civilized community, but how should we live and what must we do? Answering such questions is impossible without freedom of the press.

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James MACE was born in 1952 in Muskogee, Oklahoma, USA, and has a Ph.D. in history. In 1981- 86 he worked at the Harvard Ukrainian Research Institute and in 1986-1990 as Executive Director of the US Commission on the Ukraine Famine. Afterwards he was at Columbia and Illinois Universities. Since 1993 he has lived in Ukraine. He worked in the Academy of Science's Institute of Ethnic and Political Studies and since 1995 has been professor of political science at the Kyiv-Mohyla Academy National University. He is author of approximately 160 works on twentieth-century Ukraine. He is also consultant and a columnist for The Day in English.