"Congress shall make no law [...] abridging the freedom of speech, or of the press."blank">Vietnam War. After being suspended by their principal, the students sued. When their case reached the Supreme Court four years later, the justices decided by a 7 to 2 majority that the First Amendment did apply to public school students.
"It can hardly be argued," Justice Abe Fortas wrote in the majority opinion, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." As the Des Moines students' silent protest hadn't significantly disrupted the educational process, the school had no right to punish them for expressing their views. Most student journalists and their faculty advisers, in both high schools and universities, interpreted the broad Tinker standard to mean that administrators had no right to censor student expression in school newspapers.
But the Tinker standard always had its critics.
One of the two dissenters in deciding the case, Justice Hugo Black, argued vehemently that the majority opinion was dangerously misguided. "I repeat," he wrote, "that if the time has come when pupils of state-supported schools [...] can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary." While Black failed to sway his colleagues to his position in Tinker, his viewpoint—that student free speech rights ought to be narrowly limited in the interest of good discipline and educational effectiveness—has been echoed in more recent court rulings, which have significantly curtailed the student freedoms established in Tinker.
In 1986, the Supreme Court ruled in Bethel School District v. Fraser that the First Amendment didn't protect high school students from punishment for disruptive or offensive speech in school. The particular disruptive and offensive speech in question was an off-color nomination address delivered during a 1983 student body election in a Washington high school. A student named Matthew Fraser began his brief speech in favor of a friend's candidacy for A.S.B. vice-president by saying, "I know a man who is firm—he's firm in his pants..."
Things only went downhill from there, and when the speech ended, Fraser found himself suspended from school for two days for disruptive behavior. With backing from the ACLU, Fraser took the case to court, arguing that his rights to free speech had been violated. But in Bethel, the Supreme Court rejected Fraser's argument that the First Amendment protected his innuendo-laced commentary, ruling that the school had every right to restrict "offensively lewd and indecent" speech that disrupted the learning environment.
In effect, Bethel began rolling back the liberal conception of student freedom of expression established in Tinker.
In 2007, the more restrictive Bethel standard was reaffirmed and strengthened by the Court's decision in Morse v. Frederick, a case that confirmed an Alaska school principal's right to discipline a student who unfurled a large banner reading "Bong Hits 4 Jesus" just across the street from his high school during a school-sanctioned event. The Morse case found no clear consensus on the Supreme Court, resulting in five separate opinions.
The most hilarious is surely Justice John Paul Stevens' lengthy meditation on whether or not "Bong Hits 4 Jesus" ought to be viewed as a subversive pro-drug message or merely goofy adolescent gibberish. The most arresting, on the other hand, must be Justice Clarence Thomas' flat assertion that "the First Amendment, as originally understood, does not protect student speech in public schools," an assertion rooted in Thomas' apparent approval of a pre-Tinker learning environment in which "teachers taught, and students listened. Teachers commanded, and students obeyed."
The Supreme Court's move from Tinker to Bethel clearly narrowed the scope of students' rights to exercise free speech while in school. But what about student journalism?
Both Tinker and Bethel focused specifically on non-written forms of expression, and the Court didn't clarify whether the same standards should apply to the student press. Did Tinker mean that student newspapers had a right to freely print articles representing any and every political viewpoint? Or did Bethel give school administrators the right to censor student newspapers if they tried to print offensive or disruptive material? By the mid-1980s, the standards under which the student press was operating were no longer clear.
In the 1988 case of Hazelwood v. Kuhlmeier, the Supreme Court sought to clarify the situation. Whether the Court actually succeeded in doing so is debatable. The case began when student journalists at Missouri's Hazelwood East High School sought to print two edgy articles—one focusing on the effects of parents' divorce upon students, another examining the issue of teenage pregnancy at the school. The principal, upon review of their page proofs, deleted both articles from the issue before publication.
The student journalists, angered by what they viewed as a blatant imposition of censorship, went to court. In the end, they lost.
In a split 5 to 3 decision, the Court ruled that the principal of Hazelwood East did have the constitutional grounds to censor the school newspaper because the paper itself—which was produced as part of a for-credit journalism class—was not a "forum for public expression" but was rather a "regular classroom activity." As such, the paper deserved not the broad protection offered to the free press under the First Amendment, but rather the much narrower protection offered to students in a classroom setting, where "educators are entitled to exercise greater control."
The court majority then offered a very broad set of specific circumstances in which school officials would be justified in censoring student publications: cases in which the material in question was "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." Critics blasted these standards as far too broad and subjective in nature. What, for example, would prevent a school principal form rejecting a critical article on the spurious basis that it was "poorly written"?
In practice, the Hazelwood decision gave school officials a great deal of power to regulate the content of the student press. Student press freedom advocates argue that it gutted students' protections under the First Amendment.
But there's a catch. Not wanting to make quite such a blatant attack on students' First Amendment rights, the Supreme Court in Hazelwood couched its judgment in that odd distinction between a "forum for public expression" and a "regular classroom activity." In practice, of course, most high school papers have functioned as both. The Hazelwood decision explicitly argued that a school publication that had established itself as a "public forum" would be entitled to broader protections under the First Amendment. Hazelwood East's paper just didn't happen to meet that standard. Student journalists and their faculty advisers across the country have been wondering whether or not their own papers qualify as "public forums"—and whether or not their publications have First Amendment rights—ever since.
The Supreme Court has refused to accept subsequent cases that might have helped to clarify the vague Hazelwood standard. In the absence of a clear statement from the Court, the general presumption since Hazelwood has been that most high school papers do not have full-blown freedom of the press, but that most college papers—which typically aren't produced as part of the academic curriculum—do.
However, in 2005, the Seventh Circuit Court of Appeals in Chicago applied the Hazelwood standard to a college paper for the first time, ruling in Hosty v. Carter that Governors State University in Illinois did have the right to prior review of the school's previously independent newspaper. In 2007, the Supreme Court refused to hear the Illinois students' appeal. That means that as of today, college publications in Illinois, Indiana, and Wisconsin—the Seventh Circuit's jurisdiction—may be subject to censorship under the Hazelwood standard, while college papers elsewhere in the country are not.
Clearly, it's an understatement to say that the current state of student First Amendment law is a bit of a mess. Even the simplest question lacks a simple answer: Do student journalists today have a First Amendment right to the freedom of the press?
Maybe. Maybe not.
In 1832, the Tontine Coffee House, at the corner of Wall and Walter Streets, was the center of intellectual and commercial exchange in New York City. A room on the second floor housed the New York Stock Exchange. On the first floor, newspapers from across America and the capitals of Europe were available for perusal or purchase. Gentlemen with a free morning could spend it in the reading room, quietly digesting the news of the world.
In 1833, the New York Sun published its first issue. Selling for only one penny (the older papers cost six cents), the Sun became an immediate success. Just six months later, the paper's owner, Benjamin Day, claimed a daily circulation of 8,000—more than double its nearest competitor. But by the 1830s and '40s, the penny papers offered no apologies for their detailed coverage of the fights and all the surrounding fanfare—the extension of a challenge, the terms of the contract, the size of the purse, and the brawls among the fans that often preceded and followed these fights.
As the century progressed, Americans embraced a wider variety of sports, and their suspicion of recreation was replaced by a celebration of the physical and moral benefits of sporting competition. As attitudes changed, sports moved onto the pages of even the more expensive and conventional papers. And as part of this greater acceptance of sports, baseball displaced prizefighting as the most popular sport in America.
There were a number of reasons for this, but at least part of baseball's ascendance as the "national pastime" was due to the game's better suitability for newspaper coverage. Far better than the boxing matches that preceded it or the football games that followed, baseball could easily be reduced to numbers—an entire game could be summarized efficiently in a box score, and teams and players could be compared using statistics. Of course, there was no replacing the experience of watching a ballgame—and the vivid narrative penned by a talented sports writer added texture to the statistical summary. But a simple box score, reducible to a few column-inches on the page, could be disseminated across the city, and across the nation, uniting Americans in the common social experience of a sporting event that may have really unfolded on the opposite side of the country.
In this sense, sports coverage and crime coverage had something in common—they tied Americans together through knowledge of a series of dramatic and entertaining events. Through their coverage of the sensational and the horrific, the scandal and the spectacle, penny papers formed Americans into a community of curiosity seekers.
The significance of this cannot be overstated. Since the nation's founding, statesmen and philosophers had worried about what might tie Americans together. In a nation so large, divided into often-antagonistic regions, and separated by politics, religion, and ethnicity, they agonized over the possible sources of national cohesion.
Alongside these great names and their grand schemes, any discussion of the scandalmongers Benjamin Day and James Gordon Bennett may seem misplaced. But their introduction of an affordable newspaper that delivered stories that interested people and that provided America's diverse population with a shared set of compelling literary experiences did a great deal to shape a common national consciousness.
The German philosopher Goethe suggested that national identity is founded on a sense of shared experience, an individual's awareness that some act being performed was "being replicated simultaneously by thousands (or millions) of others of whose existence he is confident, yet of whose identity he has not the slightest notion."
Benedict Anderson, an American social theorist and historian, more recently suggested that reading a daily paper was precisely this sort of act—a daily ritual performed by millions of Americans in full awareness that millions of others were doing the same. If Goethe and Anderson are correct, the creators of the penny press did more than take the news out of the coffee house and into the street. They helped turned America's diverse and disconnected populace into a culturally united people.
In 1798, the United States Congress passed the Sedition Act, prohibiting all "false, scandalous, and malicious" attacks—verbal or written—against the president or Congress.
In the months that followed, 18 men were arrested under the act—most of them journalists critical of John Adams' Federalist administration—resulting in 14 prosecutions and ten convictions. Looking back with 200 years' hindsight, it's hard for us to imagine a more flagrant violation of the freedom of the press, a more shocking assault on a principle that we've come to accept as fundamental to American liberty.
Clearly, the First Amendment wasn't so universally respected in 1798—or so universally understood. It would take more than a century for the American judicial system to flesh out the full meaning of free speech.
But the press that was guaranteed this freedom was equally slow to develop. In 1798, America's newspapers were far from the objective sources of information that we now expect them to be. They were, to the contrary, neither balanced nor non-partisan in their reporting, and neither cautious nor particularly civil in their commentary. It would take more than a century for America's newspapers to take on the character and the tone that we now associate with an independent, free, and responsible press.
And even then, some continued to argue that in fundamental ways, little had changed. According to some, America's press remained neither independent nor truly free.
The American press was really born amidst the partisan conflict of the Revolutionary War. There were newspapers in the colonies prior to 1775; 35 existed when the first shots were fired at Lexington and Concord. But American colonists' dispute with Great Britain increased the profile of the press and inspired the creation of another 35 papers before the war's end.
It's therefore understandable that a central feature of America's early press was its rabidly partisan focus. Revolutionary era papers weren't interested in a balanced discussion of events. Instead, they wanted to be part of the political debate, engaged emphatically, on one side or the other, in the imperial dispute. Patriot papers like the Boston Gazette and Massachusetts Spy did journalistic battle with loyalist press like the New York Gazetteer. And occasionally, they took their verbal crusades out into the street. Benjamin Edes and John Gill of the Boston Gazette were among the planners of the Boston Tea Party.
Nor did the general public expect or want anything different from their newspapers—they insisted that their papers be as violently partisan as they were. When William Goddard, the editor and publisher of Baltimore's Maryland Gazette, printed an editorial critical of George Washington in 1779, an outraged Patriot mob forced him to print a retraction—at gunpoint.
When the Revolution ended, and the debate moved forward to a set of questions about the structure of government most appropriate to the new nation, America's newspapers continued to polemicize in much the same vein. The Federalist Papers, which made perhaps the most critical contribution to the American political thinking of the era, were printed in three New York newspapers during 1787 and 1788 in an effort to secure ratification of the new Constitution. Those papers never considered devoting equal space to the Anti-Federalist position.
In fact, many historians argue that Federalist domination of the press was central to the success of the pro-ratification forces. In other words, if it weren't for the pro-Federalist bias of the press in the late 1780s, we might not have had a Constitution at all.
Again, the partisan, unbalanced character of the press is easily explained as consistent with the times. This was a period of intense contest and history-changing debate. But partisanship remained a defining feature of the press even after the Constitution's ratification, when the nation was unified under the most universally respected man in America.
During George Washington's administration, newspapers continued to serve more as adjuncts to political parties than as voices of unbiased information. For example, Alexander Hamilton oversaw the creation of a pro-administration paper—the Gazette of the United States, edited by John Fenno. And as Thomas Jefferson's disagreements with Washington's administration multiplied, he brought Phillip Freneau to the capital to start an opposition paper named the National Gazette.
These papers were vicious.
To modern readers, their violently partisan tone and flagrant disregard for a balanced and objective presentation of information jumps right off of the page. In the 1790s, a Republican paper described President John Adams as "old, querulous, Bald, blind, crippled, Toothless Adams." Fenno's Federalist Gazette, in turn, ripped such critics as "dismal cacklers" and "the worst and basest of men.")
As newspapers grew to depend more heavily upon advertising revenue for their survival and profitability, they also grew vulnerable to pressure from their advertisers to modify their content. Sometimes advertisers made only small demands on the papers—for example, a brief mention in an article that the gun used to apprehend a criminal was a Smith & Wesson. But other times they demanded more dramatic concessions from the editors. Many advertisers insisted, for example, on "reading notices"—product advertisements that looked just like real articles and were visually integrated into the news to complete the deception.
In negotiating these reading notices, advertisers demanded that the font and style of the notice exactly replicate those used in regular news items—and that they be surrounded by "real" news.
Advertisers sometimes also demanded that the newspapers receiving their ad dollars support their interests on their editorial pages. They screened newspapers' presidential endorsements, their stands on congressional legislation, and their positions on local politics. In one famous episode, patent medicine companies demanded that their newspaper clients oppose legislation that would require that the content of their medicines be disclosed on the label. These producers worried that the public would react poorly to the revelation that alcohol was often the largest single ingredient in their "medicines."
As newspapers grew more sensitive to the needs of the business community that supported them, they also grew more reliant upon emerging organizational trends within the business community. Like other American industries, the press turned to consolidation as a means of increasing efficiencies and reducing costs. An individual paper might not be able to make it—but a chain of papers that shared reporting, managerial, and distribution costs probably could. In the first decades of the 20th century, more and more papers were forced by rising costs into the chains forged by a handful of newspaper moguls like William Randolph Hearst and E.W. Scripps.
There were other alternatives for the small newspaper struggling with rising costs. The most popular was to purchase a large part of their news from "newspaper unions." These sold templates, partially filled with national news and broadly-aimed feature stories, to small newspapers that were then completed by local reporters covering the local news.
The growth of chains and use of newspaper unions allowed America's network of newspapers to segue into the more economically rational 20th century. But there was a price for all this. In order to reduce costs, news writing had to be centralized. This meant that reporters had to write for a national, and therefore regionally and politically diverse, audience. Opinions had to be tempered; potentially offensive elements had to be removed.
This centrally generated news was cost-effective, but it was also bland. It allowed small papers to fill their pages inexpensively, but the news that they delivered was stripped of the edge that had given the 19th-century paper much of its character.
The result was that as the newspaper transitioned into the new century, it did so only by sacrificing many of the qualities that had made it such a vibrant part of American culture in the 19th century. Of course, this also meant that some of the excesses that accompanied these earlier forms of journalism were abandoned as well. The vicious attack on a political opponent and the indulgent rant from an eccentric editor disappeared from the news pages of America's mainstream press. In this sense, the newspaper matured; it took on the sober, careful, balanced tone of the modern press.
But for many, there was more lost than gained.
Newspapers were more sober but less courageous, more cautious but less committed to advancing the civic welfare. The partisan crusades that formerly had alienated half the readers were viewed as a vital part of political mobilization by others. The idiosyncratic rant that had offended some readers was a seen as a necessary call for justice by others. And while some defended the bland new tone as the price paid to free newspapers from the control of political parties and egomaniacal local editors, others complained that America's newspapers weren't any more independent than they ever had been.
They were no longer the tools of a party or the mouthpieces of an individual, but they'd become dependent on their advertisers and, at times, servants to their interests. More subtly, they were forced to print papers that would please rather than offend, that would cultivate rather than challenge readers in order to satisfy the circulation-counting advertisers who paid the bills.
We often forget that a particular piece of technology lies at the heart of our historical commitment to a free and vigorous "press." American political theorists write eloquently about the importance of the press to free societies and American courts rigorously define both the breadth and the limitations of the press.
But we tend to forget fact that, most fundamentally, America's press depends on the piece of machinery for which it is named: the printing press.
After Gutenberg's invention of removable type and a screw-driven press in the mid-15th century, printing technology changed relatively little for several hundred years. The presses used by American newspapers during the colonial period were built on the same technological principles as Gutenberg's original. But in the first half of the 19th century, a wave of new technologies revolutionized the printing process, and consequently, the place of the newspaper in American life.
Foremost among these technological advances were improvements to the printing press itself. A horse-driven press was experimented with briefly as an alternative to manpower in the early-19th century, but in 1823, Jonas Booth introduced a steam-driven press that was far more efficient than literal horsepower.
Booth's innovation was soon followed by the invention of the cylinder press. In the 1830s, New Yorker Richard Hoe began tinkering with the rudimentary cylinder presses being developed in Europe. His experiments culminated in the development of a four-cylinder rotary press in 1847. On this newest press, the type was placed on a large rotating cylinder that imprinted paper fed to the four impression cylinders that surrounded the central cylinder. With boys frantically feeding paper to this press, Hoe's machine could print 8,000 sheets an hour.
Hoe's improvements to the press were complemented by breakthroughs in papermaking. Steam-driven machines that could press paper were developed in France and England around 1800. By the middle of the century, wood pulp had replaced linen as the primary ingredient of paper, significantly lowering the cost.
These innovations had an immediate impact on the American newspaper. By dramatically lowering the cost of printing, they enabled farsighted publishers to imagine an affordable paper aimed at a mass audience. They enabled men like Benjamin Day and James Gordon Bennett to introduce the penny paper.
The penny paper dramatically changed the place of the newspaper in American life. Unlike the older papers that aimed at a relatively narrow slice of the public and served primarily as organs of political parties, the penny papers reported the whole range of urban life—crime, scandal, sports, political corruption—to the great majority of the urban populace.
The new technologies were also placed into service by the vastly expanding list of religious and reform organizations of the antebellum period. Great Awakening evangelicals and Seventh Day Adventists, advocates of the Graham diet and hydropathy—all generated their own penny papers. Cheap paper and a fast press allowed visionaries of all types to get their message inexpensively before the American public.
In the years that followed, other technologies and innovations left their mark on the newspaper. Some, like the telegraph and the trans-Atlantic cable, rapidly accelerated the collection of information. Others, like the camera and the use of color ink, expanded the graphic potential of the paper. And the introduction of the computer in the last quarter of the 20th century radically altered both the writing and the production processes of the newspaper.
But none of these have impacted the newspaper as dramatically as the internet. This newest technological breakthrough is poised to radically transform the newspaper, and news, as we know it.
For some, especially those employed in the newspaper industry, the arrival of the internet has been far from wholly beneficial. Many newspaper editors refer to the internet's challenge to the traditional press as a "crisis." Others, even more pessimistic, have concluded that "print is dead."
Adverstising revenues have plummeted as sellers and buyers turn to web-based, and usually free, services like Craigslist or eBay. For more than a century, ad sales have provided the majority of the newspaper's income, and nearly half that income after 1950 came from classified ads. Plummeting ad sales, especially in classifieds, now translate into a catastrophic decline in the newspaper's principal source of revenue.
Second, more and more news readers get their news from one of hundreds of news portals on the web. From more traditional providers of syndicated content like Google News to innovative aggregators like Digg, the web is filled with alternatives to the conventional newspaper.
The numbers tell great deal of this dire story. Ad sales, which represent 80% of most newspapers' revenue, are in steep decline. And circulation figures are even worse. Despite growing digital subscriptions, total circulation continues to decline year after year. Declining circulation and declining revenues have led to massive layoffs at almost every paper. The New York Times, the Los Angeles Times, and the Chicago Tribune laid off hundreds of workers in 2007 and 2008. Of course, the stock values of major papers have declined as well.blank">mullet strategy," the site is "business up front, party in the back." Credible, serious reporting and opinion journalism produced by professionals gets front-page status, while edgier user-generated content and lively user discussions are buried deeper within the site.
The future of the newspaper's still unclear. The forms that it might take in order to survive aren't yet apparent.
But the numbers indicate that those interested in survival can't cling too tenaciously to the old models. And traditionalists who resist innovation should recall that the mass circulation paper is really a recent invention—that the paper that has served for the past century as a vital part of our culture was only made possible by a group of innovators willing to embrace the possibilities lying within new technologies.
Rather than clinging to the past, they might do well to ask themselves WWJ(GB)D—what would James Gordon Bennett do?