uninhibited, robust, and wide-open INALIENABLE RIGHTS SERIES < series editor Geoffrey R. Stone Lee C. Bollinger Michael W. McConnell President Judge U.S. Court of Appeals for Columbia University the Tenth Circuit Alan M. Dershowitz Martha C. Nussbaum Felix Frankfurter Professor of Law Ernst Freund Distinguished Service Harvard Law School Professor, Philosophy, Law, Divinity, South Asian Studies Richard A. Epstein The University of Chicago James Parker Hall Distinguished Service Professor Richard A. Posner University of Chicago Law School Judge U.S. Court of Appeals for the Seventh Circuit Pamela S. Karlan Kenneth and Harle Montgomery Jack N. Rakove Professor of Public Interest Law William Robertson Coe Professor of Stanford Law School History and American Studies Stanford University Alexander Keyssar Matthew W. Stirling, Jr., Geoffrey R. Stone Professor of History and Social Policy Harry Klaven, Jr., Distinguished Service JFK School of Government, Harvard Professor University University of Chicago Law School Michael J. Klarman Kathleen M. Sullivan James Monroe Distinguished Professor of Stanley Morrison Professor of Law and Law and History Former Dean University of Virginia Stanford Law School Larry D. Kramer Laurence H. Tribe Richard E. Lang Professor of Law and Carl M. Loeb University Dean Professor of Law Stanford Law School Harvard Law School Lawrence Lessig Mark V. Tushnet C. Wendell and Edith M. Carlsmith William Nelson Cromwell Professor of Law Professor of Law Stanford Law School Harvard Law School Geoffrey Stone and Oxford University Press gratefully acknowledge the interest and support of the following organizations in the Inalienable Rights series: The ALA; The Chicago Humanities Festival; The American Bar Association; The National Constitution Center; The National Archives. other books in the series Not a Suicide Pact The Constitution in a Time of National Emergency Richard A. Posner Supreme Neglect How to Revive Constitutional Protection for Private Property Richard A. Epstein Out of Range Why the Constitution Can’t End the Battle over Guns Mark V. Tushnet Unfi nished Business Racial Equality in American History Michael J. Klarman Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11 Alan M. Dershowitz The Invisible Constitution Laurence H. Tribe From Disgust to Humanity Sexual Orientation and Constitutional Law Marth Nussbaum This page intentionally left blank Uninhibited, Robust, and Wide-Open < a free press for a new century Lee C. Bollinger 1 2010 3 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2010 by Oxford University Press Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Bollinger, Lee C., 1946– Uninhibited, robust, and wide-open : a free press for a new century / Lee C. Bollinger. p. cm.—(Inalienable rights series) Includes bibliographical references and index. ISBN 978-0-19-530439-8 1. Freedom of the press—United States. I. Title. KF4774.B66 2010 342.7308'53—dc22 2009023784 1 3 5 7 9 8 6 4 2 Printed in the United States of America on acid-free paper For Jean, Lee & Jen, and Carey This page intentionally left blank Contents< Acknowledgments xi chapter one Uninhibited, Robust, and Wide-Open 1 chapter two It Is an Experiment 44 chapter three Regardless of Frontiers 68 chapter four The Touchstone 107 contents Epilogue 162 Notes 164 Index 199 [ x ] Acknowledgments< I have many people to thank for help and assistance on this book, and it is a great pleasure to be able to single out many of them here. The invitation from Oxford University Press to write a volume on freedom of the press, which I accepted well in advance of a dead- line for submission of a manuscript, gave me the opportunity and the challenge over time to think anew about ideas and issues that have occupied my attention for much of my life (beginning as a young boy doing menial tasks in the small-town daily newspaper run by my father). Writing is never a continuous process from start to fi nish, but there must be some sustained period in which that is your only focus. The trustees of Columbia University made it possible for me to use the summer of 2008 for this purpose. That yielded a draft which I could then periodically return to and build on, as further research and refl ection permitted. The editor of the Oxford series on rights, Geoffrey Stone, has been not only a friend and colleague since we met in 1972 but also an outstanding critic and commentator on the First Amendment. Along with his expert comments, I benefi ted from the thoughtful advice of Oxford Senior Editor David McBride and the careful production by Senior acknowledgments Production Editor Jessica Ryan. Overseeing and managing the entire process was my outstanding assistant Carla Matero. In Esha Bhandari, Devi Rao, and Jennifer Sokoler, I had the best research assistants one could hope for. And Judith Shulevitz added a percep- tive and critical outside editor’s eye to help bring the fi nal drafts to completion. Susan Glancy, my Chief of Staff, helped balance the work of the president’s offi ce so that writing could fi nd its place. There were many who generously volunteered to help—giving advice, sharing their expertise, reading and commenting on drafts, listening attentively even to inchoate ideas, giving interviews, and generally sharing their enthusiasm for the project. I am indebted and thankful to every one of these individuals: Floyd Abrams, Steve Adler, Jose Alvarez, Kofi Annan, Vincent Blasi, Alan Brinkley, Robert Burt, Kathleen Carroll, Nigel Chapmen, Kevin Close, David Drummond, Sig Gissler, Don Graham, Kent Greenawalt, Miklos Haraszti, David Ignatius, Merit Janow, Nicholas Lemann, Menachern Mautner, Navanethem (Navi) Pillay, Jeff Sachs, Karl Sauvant, Joseph Sax, Joel Simon, Paul Steiger, David Stone, Gwyneth Williams, and Mark Wood. Lastly, I wish to thank my wife, Jean. As always, she was there from the beginning to the end—living together the experiences that generated the ideas, happily engaging in conversation about them, and reading and commenting perceptively on the evolving book. Most of all I am forever grateful for the inspiration she continually provides to do right by the world. I should only note by way of disclosure that I currently serve as a director of The Washington Post Co. It nearly goes without saying that I alone am responsible for everything in this book. [ xii ] uninhibited, robust, and wide-open This page intentionally left blank chapter< one Uninhibited, Robust, and Wide-Open The American press, sheltered from censorship by an elaborate body of case law under the First Amendment and sometimes prodded by public regulations to serve the public interest, is one of the greatest achievements of the United States. Wherever you go in the world, journalists envy it. Every year in April, as president of Columbia University, I sit for two days with distinguished journalists to decide which newspapers and reporters will win the Pulitzer prizes in jour- nalism. If you could be there and witness the deliberations (and the painstaking labors of the juries that sift through the nominees and recommend the fi nalists for each category), you would be struck by the professional standards manifest in the entries and used to select the winners. You would be impressed by the sense of mission that infuses journalists, moved by the dangers they overcome to get their stories, and thankful for the good they accomplish. Part of what is amazing about journalism in America is that, despite the fact that it operated for most of the twentieth century as a business, it differed from the typical business model in important uninhibited, robust, and wide-open ways. First, journalism was suffused with a strong sense of mission to serve the public interest. Second, the press was largely able to maintain editorial independence, despite pressures from the state or the commercial interests of their own publications. Third, it was shielded by a constitutional cocoon of protection from the legal accountability ordinarily applicable to comparable businesses. And fourth, much of the media enjoyed the advantages of strong—even monopolistic—economic positions in their markets. Since the advent of the Internet in the late twentieth century, many American press organizations—particularly newspapers and magazines—have been struggling to remain profi table, and many of them have closed. How American journalism can sustain its autonomy, sense of mission, and a workable fi nancial model has become one of the urgent questions of our time. Nonetheless, America still leads the world in defi ning journalistic values. For some, it is the model or beacon. For others, it seems appealing but counterintuitive and improbable that a society could organize itself in this way with such a high potential for irresponsibility, instability, and chaos. Still other nations simply envision the role of the press very differently, largely as an arm of the state. And, it must be said, even those that are nearest to the United States in their commit- ment to a democratic form of government (such as Great Britain, Germany, and France) have sometimes arrived at a different balance when it comes to the press and other societal interests.