If there is a weakness in this book, it is how the theoretical can be linked to the practical. The concept of press freedom is hard to separate from the means of production and distribution. And as we know, the business model at most American media companies has been moving away from national or international reporting, and toward a local or even hyper-local approach. The wisdom of this model remains to be seen—but it is less than hospitable toward the ideas of an internationalist like Bollinger. He does, of course, acknowledge the severity of the economic freefall. Yet he does not explore fully the way in which the crisis stymies the advancement of press freedoms in the U.S., let alone the rest of the world.
Meanwhile, few leaders in the U.S. newspaper or broadcast industries today are focused on press rights. Even The New York Times, a key player in both of the landmark cases discussed by Bollinger, is not leading the charge for the First Amendment. Instead, the paper is fighting simply to survive.
In fact, the retreat of First Amendment values in this country over the last decade is undermining the very institution that Bollinger has pegged for a global platform. The press is under siege. For example, in what has become known as the BALCO case, two Hearst reporters from the San Francisco Chronicle wrote 425 articles chronicling the prevalence of steroids and other performance-enhancing drugs in professional baseball. When they refused to reveal the identities of several dozen confidential sources to federal prosecutors, they were each sentenced to eighteen months in prison. Ultimately our legal team at Hearst won the case and kept the reporters out of jail. Still, such incidents make it harder to sell the U.S. as a role model abroad.
Bollinger, meanwhile, is confident that the principles of free speech enshrined in the First Amendment have the inherent ability to influence the course of global events. Indeed, several countries are showing a willingness to reflect free speech principles after years of shunning them. In Canada, for example, the Supreme Court recently held in two libel cases that journalists are not liable if their stories, whether true or false, are in the public interest. This ruling changed decades of Canadian law that protected government officials and powerful public figures from criticism. And last month, the European Court upheld the right of British journalists to protect their confidential sources when reporting on matters of public concern. The same court is scheduled to consider a similar request regarding Dutch journalists next month.
Notwithstanding the complexities on the world stage and the shrinkage of First Amendment protections in the U.S., Bollinger’s concept of universal press freedoms is worth considering. Perhaps there should be a First Amendment ombudsman at the White House or the Department of Justice.
In addition, law schools and journalism schools should join forces to provide actual representation overseas to journalists in distress. Local attorneys will always be the first line of defense for embattled journalists, but an international cadre of press lawyers could assist in making the broader, principled arguments that Bollinger suggests. Such interventions have the potential to make a real difference. In 1995, I represented a Khmer journalist in Phnom Penh who was charged with seditious libel. My physical presence, as well as an articulation of First Amendment principles, helped win the day in a Cambodian court during a time of political turmoil.
Bollinger urges the U.S. to apply pressure on behalf of free speech in every possible venue. We should use the Universal Declaration of Human Rights and other such treaties that have free speech requirements and are customary international law. We should use world courts. We should also, the author suggests, require free speech values to be part of our international trade discussions. How can we change things internationally if we cannot assure the survival of our own journalistic culture, or rely on our own courts to protect the values we cherish? The answer is that we must. Bollinger is right.
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