Images of a Free Press. by Lee C. Bollinger. Rodney A

CORE Metadata, citation and similar papers at core.ac.uk Provided by University of Minnesota Law School University of Minnesota Law School Scholarship Repository Constitutional Commentary 1992 Book Review: Images of a Free Press. by Lee C. Bollinger. Rodney A. Smolla Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Smolla, Rodney A., "Book Review: Images of a Free Press. by Lee C. Bollinger." (1992). Constitutional Commentary. 949. https://scholarship.law.umn.edu/concomm/949 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. 350 CONSTITUTIONAL COMMENTARY [Vol. 9:350 IMAGES OF A FREE PRESS. By Lee C. Bollinger.' Chi cago: The University of Chicago Press. 1991. Pp. 222. $22.50. Rodney A. Smolla 2 Images of a Free Press is the natural sequel to Lee Bollinger's first book, The Tolerant Society,J and like his first book, is destined to become a standard in first amendment scholarship. Images of a Free Press is a critical examination of what Bollinger calls the "cen tral image" of the American ideal of freedom of the press, an image crystallized in the Supreme Court's opinion in New York Times Co. v. Sullivan. The classical view of a free press embraced in Sullivan and recounted by Bollinger contemplates a press that operates at arm's length from the government, virtually free of all licensure or prior restraint, and except for a very narrow range of abuses-such as libel, invasion of privacy, or grave threats to national security immune from liability for what it publishes. Even in these narrow circumstances, first amendment rules are tilted in favor of the press, My diary also recorded my attendance at a Sunday school whose principal was a tall, kindly, attractive man named John Lovejoy Elliott. The school was conducted by the Society for Ethical Culture which had been founded in New York City by Dr. Felix Adler with an emphasis on ethical conduct in all the relations of life. That was as near as we came to an organized religion in my family. Father was a freethinker and we children followed in that course until later in life when we came to our own conclusions in the realm of faith. See generally, Ernest Gruening, Many Battles: The Autobiography of Ernest Gruening (Liver ight, 1973). His father, Emil, was a distinguished ophthalmologist whose biography appears in the Dictionary of American Biography, Allan Johnson and Dumas Malone, eds., 4 Diction ary of American Biography, pt. 2, 32 (Charles Scribner's Sons, 1932). This biography men tions no religion for the Senator's father. Third, the most interesting and instructive error is the statement on page 120 that San dra Day O'Connor was on the list of potential women candidates "under consideration" for the vacancy ultimately filled in 1975 by Justice Stevens. Cited for this proposition is David M. O'Brien Storm Center: The Supreme Court in American Politics 86 (W.W. Norton, 2d ed. 1990). O'Brien says what our author says he said and cites materials in the Ford library. For my article in this publication entitled The Case of Justice Stevens: How to Select, Nominate and Confirm a Justice of the United States Supreme Court, 7 Const. Comm. 325 (1990), I reviewed the papers in the Ford Library and found that a relatively obscure employee in the White House wrote a memo passing on to her superior the name of Sandra O'Connor, whom she incorrectly identified. But the present Justice O'Connor was never "under consideration" for appointment in 1975. See id. at 331. When a Supreme Court vacancy occurs there are frequently both lists and the list. To have a person's name placed on a list at the White House does not mean that that person will be given consideration for appointment to the Court. I. Dean and Professor of Law, University of Michigan. 2. Arthur B. Hanson Professor of Law, and Director, Institute of Bill of Rights Law, College of William and Mary, Marshall-Wythe School of Law. 3. Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Oxford U. Press, 1986). 1992) BOOK REVIEWS 351 forcing the government to justify all incursions on press freedom with compelling arguments. Bollinger's characterization of this classical image of the press, and his argument that it is epitomized by New York Times Co. v. Sullivan, are surely right. Anthony Lewis, for example, has re cently given the Sullivan case a wonderful historical and philosophi cal treatment-a treatment that celebrates and endorses the classical image of the free press that Bollinger describes. 4 Indeed, in reading Bollinger's portrait of this classical image, I had the uneasy feeling of being reduced to a cultural and intellectual stereotype (something that happens often to me, by the way, as if I am living the life of a character in a Woody Allen movie), for I realized that I have always bought into this image-at least insofar as it captures succinctly my view of what the first amendment ought to mean.s Bollinger's book is an argument that this traditional image of the press and the first amendment model of press freedom that ema nates from it ought to be replaced by a more sophisticated imagery, one that incorporates a model of public discourse that places a greater premium on enhancing the quality of public discussion and decisionmaking. In Bollinger's view, public institutions-including the legal system-have a constructive role to play in improving the tenor of this public debate. * * * In 1947, the Hutchins Commission published its report, A Free and Responsible Press.6 Lee Bollinger describes the report as "[e]legant, intelligent, and concise." Those same words are apt in describing the style of Bollinger's Images of a Free Press. The simi larities, however, are more than stylistic. Bollinger's book is the in tellectual heir to the Hutchins Commission report. Bollinger suggests that a new "Hutchins Commission" be convened in the 4. See Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (Random House, 1991). Even so, Lewis is an excellent example of a journalist who is also often critical of the practices of his colleagues and the tenor of public discourse. It would be fair, in fact, to characterize Lewis' sensibilities about how the press should conduct itself as quite parallel to Bollinger's-and to my own. The difference between Lewis's (or my) posi tion and Bollinger's comes down to the extent to which one is willing to see these intuitions about how the press should operate enacted into positive law dictating how the press must operate. 5. See Rodney A. Smolla, Free Speech in an Open Society 4-5 (Knopf, 1992) ("Free Speech") ("A society that wishes to take openness seriously as a value must therefore devise rules that are deliberately tilted in favor of openness in order to counteract the inherent proclivity of governments to engage in control, censorship, and secrecy.") 6. The "Commission on Freedom of the Press" took its nickname from Robert M. Hutchins, the famous chancellor of the University of Chicago, who served as its chair. It was formed in 1943 by grants from Time, Inc., and Encyclopedia Britannica, Inc., and was ad ministered by the University of Chicago. Among its distinguished members were Reinhold Neibuhr and Zechariah Chafee, Jr. 352 CONSTITUTIONAL COMMENTARY [Vol. 9:350 1990s, to reexamine the current state of the press and press law in light of the rich body of experience, court decisions, and legal schol arship that has been generated since 1947. Among the Hutchins Commission's many thoughtful state ments was its summary of what society should want from the press. In the commission's view, this was "first, a truthful, comprehensive, and intelligent account of the day's events in a context which gives them meaning; second, a forum for the exchange of comment and criticism; third, a means of projecting the opinions and attitudes of the groups in the society to one another; fourth, a method of presenting and clarifying the goals and values of the society; and fifth, a way of reaching every member of the society by the currents of information, thought, and feeling which the press supplies."? This is a wonderfully full and articulate expression of what an ideal press in an open democracy might be, and measured against the standard, the Hutchins Commission found the press of its day wanting: The news is twisted by the emphasis on firstness, on the novel and sensational; by the personal interests of owners; and by pressure groups. Too much of the regular output of the press consists of a miscellaneous succession of stories and images which have no relation to the typical lives of real people any where. Too often the result is meaninglessness, flatness, distor tion, and the perpetuation of misunderstanding among widely scattered groups whose only contact is through these media.s Would Bollinger say that the press in the 1990s is as bad as the press described by the Hutchins Commission? Not in so many words. But he certainly comes close: There is no guarantee that the press will not abuse the free dom it possesses under the autonomy model. And there are many ways in which it might do so. The press can exclude im portant points of view, operating as a bottleneck in the market place of ideas.

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