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
The creation of a El Salvador newspaper. Photo by Sean Hawkey
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.
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 king’s 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 Gutenberg’s printing press in the mid-1500s.
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 king’s 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:
• John Milton’s 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 Locke’s 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.
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)
“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:
• Cato’s 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 III’s 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 Fox’s 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 Burke’s 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.
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://18.104.22.168/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
American Convention on Human Rights (1969)
“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 one’s 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.
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.”