MEDIA LAW

History of the free press

The creation of a Western free press was the work of centuries,
starting roughly in the 1600s. Only by the end of the 19th century
would a free press, along modern lines, be established. In England,
the press had to overcome, in the following order:
Opposition from monarchs
Opposition from Parliament
Opposition from the courts, and cases brought to court
All three opponents used a daunting variety of controls on the press.
This section describes controls used in the 17, 18, and 19th centuries,
followed by a list of international treaties formed during the 20th
Century.
> 17th century
> 18th century
> 19th century
> Treaties on free speech

17th century: Authoritarian controls

Officials view the printing press as a device to be used in support for
the monarch and other authorities. At the least, the press was to print
material that was politically neutral and did not question the
establishment. It was the kings prerogative as to who would own and
operate a printing press. Systems of censorship and press licensing
were set up in an attempt to control the increasing flood of new books,
broadsides and pamphlets since Gutenbergs printing press in the mid1500s.
Pre-publication Controls in England
1. Licensing of books and papers
2. Restrictions on presses, and printers
3. Submission of papers to censor prior to publication
4. Freedom to speak limited to kings circle; limited right in Parliament;
reportage of parliament illegal.
5.Harsh penalties for illegal or offending publications:
Seizure and smashing of presses
Revoking license; financial penalty
Jail for seditious or criminal libel
Physical attacks on editors
Seminal events challenging controls: 17th century
1. Emergence of liberal ideas, such as:

The creation of a El Salvador newspaper.

Photo by Sean Hawkey

 John Miltons argument for end of licensing (truth beats falsehood),

Aeropagitica, illegal tract against censorship in 1644.
English Bill of Rights (1689); more restrained monarchy after
glorious revolution
John Lockes idea of tolerance, government by consent; free speech
as a natural right not given up when society formed.
2. End of licensing law in England, 1694: explosion of new papers.
Pre-publication controls wither.
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18th century: public sphere and the press

Early 1700s: Freer public sphere in England, serviced by new
unlicenced press. Press claims to represent the public and liberty.
Reporting on Parliament allowed in 1771; stimulates growth of
reporting and public scrutiny.
Constitutional guarantees: Freedom of press protected by American
and France constitutions.
Response to radical press:
England: Government repression of radical press in late 1700s; fear of
revolution
France: Napoleon extinguishes the last flames of press freedom in
France after revolution; applies same repressive measures on the
press in all of the European countries that he conquers.
Constitutional protection of free press
U.S. Constitution -- First Amendment, 1791:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof: or abridging the freedom of
speech, or of the press; of the right of the people peacefully to
assemble, and to petition the government for a redress of grievances.
Declaration of the Rights of man and Citizen (French National
Assembly, 1789)
Article XI:
The free communication of ideas and opinions is one of the most
precious of the rights of man. Every citizen may, accordingly, speak,
write and print with freedom, but shall be responsible for such abuses
of this freedom as shall be defined by law.
Libel threat weakens.
As the battle for English public opinion is waged between government
and journalists in the 1700s, the threat of libel declined.
The libel threat:
The most serious threat was seditious and criminal libel which could
lead to arrest, seizure of press, fines. The English government also

used general warrants (no specific names on the warrant) to search

many offices.
Libel was a powerful charge because truth was not a defence, and
the jury decided only whether the printer did, in fact, publish the libel.
Conservative judges ruled on the damages.
But reformers grew bold in the 1700s, while government began to lose
key cases:
Catos letters (1720-1723): Anonymous letters in English papers
calling for liberty of press, critical of government.
US publisher John Peter Zengler cleared of libel against the governor
of New York (1735).
Letters of Junius (1769-1772): Anonymous letters in London paper
criticizing George IIIs regime on behalf of the people.
John Wilkes, MP and editor of The North Briton newspaper(1763),
acquitted of libel charge laid by government.
Meanwhile, the threat of libel was weakened when Foxs libel law
passed in 1792 increased the power of juries, who were increasingly
inclined to side with editors who were charged.
The Fourth Estate
Toward the end of the eighteenth century, Edmund Burke, theorist of
the English constitution, rose in Parliament to talk about a new player
in democracy a fourth estate. Thomas Carlyle reported Burkes
comments:
Burke said there were Three Estates in Parliament; but in the
Reporter Gallery yonder, there sat a Fourth Estate more important
than they all. It is not a figure of speech, or a witty saying; it is a literal
fact very momentous to us in these times. Literature is our
Parliament too. Printing, which comes necessarily out of Writing, I say
often, is equivalent to Democracy; invent Writing, Democracy is
inevitable ... Whoever can speak, speaking now to the whole nation,
becomes a power, a branch of government, with inalienable weight in
lawmaking, in all acts of authority. It matters not what rank he has,
what revenues or garnitures: the requisite thing is that he have a
tongue which others will listen to; this and nothing more is requisite.
The nation is governed by all that has tongue in the nation. Democracy
is virtually there.
From Carlyle, On Heroes, Hero-worship and the Heroic in History, 141.
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19th century: The liberal papers

The modern free press emerged in the 19th century across Europe,
North America and elsewhere as part of the growth of liberalism and
democratic reform. The idea of a liberal press was spread across the
English empire, as onerous press laws gradually weakened or were
eliminated.
Liberal papers pressed for a free economy and a free marketplace of
ideas, including a maximally free press. Liberal creed stated forcefully
by John S. Mill in On Liberty (1859).

Removal of forms of control:

1. Taxes: In England, taxes on papers to control the spread of mass
or popular newspapers finally removed by the mid-1800s.
2. Government regulations: Across Europe, many press regulations
were eliminated by the 1880s.
3. Libel: Legal decisions reduce libel from criminal to common law;
truth was recognized as a defence; courts recognized the right of the
press to criticize government and its ministers.
Treaties on free speech
In the 20th century, a significant, modern development of free speech
and free press rights has been their inclusion in international treaties
and international law.
U.N. Declaration of Human Rights (1948), Article 19:
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.
http://www.un.org/Overview/rights.html
U.N. Covenant on Civil and Political Rights (1966), Article 19:
Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers; either orally, in writing or in print, in
the form of art, or through any other media of his choice. The exercise
of the rights provided for in this article carries with it special duties and
responsibilities. It may therefore be subject to restrictions, but these
shall only be such as are provided by law or are necessary
: For the respect of the rights or reputations of others
For the protection of national security or of public order or of public
health and morals
UN Covenant on Civil and Political Rights (1966), Article 20:
Article 20 prohibits:
Any propaganda for war shall be prohibited by law. Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
http://193.194.138.190/html/menu3/b/a_ccpr.htm
Regional Human Rights Treaties
European Convention on Human Rights (1953), Article 10:
Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevent of disorder or crime, for the

protection of health or morals, for the protection of the reputation or

rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the
judiciary.
http://www.hri.org/docs/ECHR50.html
Western Hemisphere
American Convention on Human Rights (1969)
Article 13:
Everyone has the right to freedom of thought and expression. This
right includes freedom to seek, receive, and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing, in
print, in the form of art, or though any other medium of ones choice
The exercise of the right shall not be subject to prior censorship but
shall be subject to subsequent imposition of liability, which shall be
expressly established by law to the extent necessary to ensure . . .
Respect for the rights or reputations of others, or . . . the protection of
national security, public order, or public health or morals.
Also forbids: indirect restrictions on media communications through
government or private control of newspaper supplies, or assigning of
broadcast frequencies. Also forbids propaganda for war or hatred of
groups.
Article 14: media must recognize a right of reply to those harmed by
their communications http://www.oas.org/juridico/english/Treaties/b32.htm
African Charter of Human and Peoples Rights (1981)
Article 9: " Every individual shall have the right to receive information.
Every individual shall have the right to express and disseminate his
opinions within the law.
Article 27: Duties of each individual to family, society, the State and
other governmental entities, and the international community and
requires each person exercise their rights with regard for the rights of
others, collective security, morality and common interest.
Article 29: The individual has the duty, To serve his national
community by placing his physical and intellectual abilities at its
service . . . (and) to preserve and strengthen social and national
solidarity, particularly when the latter is threatened.
http://www1.umn.edu/humanrts/instree/z1afchar.htm