FREE SPEECH ACCORDING TO INSTA

There are two things that are odd about this post by Glenn Reynolds.

Reynolds writes:

[W]hat happens if the public comes to regard the press as untrustworthy and un-American? Will the First Amendment continue to be regarded expansively? Maybe. Maybe not.

First, and perhaps most interestingly, he seems to view public support for press freedom as connected -- causally -- to public views on the press itself, and in particular, public views on the trustworthiness and patriotism of the press.

What's odd about that claim is that 1st Amendment freedoms have not only been extended to groups that the public has found trustworthy, although public support no doubt helps. Consider the following passage from Richard Frost's The Mooney Case (1968):

The IWW [Industrial Workers of the World] was repeatedly engaged in 'free speech' crusades on the West Coast. Wherever local police interfered with IWW street-corner preaching, Wobblies from all over the West descended upon the offending town to exercise their constitutional right of free speech until thrown into jail. Singing, rioting prisoners filled the jails until local authorities, harassed by the overflow and the attendant embarrassing publicity, called a truce, expelled the prisoners from town, and left street speakers unmolested. As prisoners the Wobblies were roughly, sometimes brutally, handled. In a sense that was what they wanted, for it helped inspire fellow radicals to greater efforts on their behalf and deprived the police of moderate community support. (11-12)

What this passage suggests is that the history of protections of speech rights has much in common with the history of other kinds of political goods: organized interests are able to secure the goods, and unorganized interests are at a disadvantage. Note that few of Frost's "moderates" would probably view the Wobblies as "patriotic." My memory of the argument in David Rabban's Free Speech in its Forgotten Years is that Rabban makes a similar point: radical and unpopular groups were instrumental in pushing free speech arguments, and their successes had little to do with an increase in the popularity of their substantive message.

Second, Reynolds seems unaware of any sense in which he might be contributing to perceptions that the media is untrustworthy and unpatriotic. First, his post bleeds quite smoothly from untrustworthiness and un-American-ness to "malfeasance and self-serving behavior." Don't quite know how to read that one. But, secondly, he also links to the crappy poll put out by Fox news that I discuss here (you remember: it's the one that is designed to prompt respondents for bad opinions on the press; the only interesting thing to be said about this poll is that with it, Fox News is both creating the story and furthering its own brand image).

This poll is an expression of a worrisome journalistic practice, one that has close historical parallels with the German experience with Axel Springer and the Bild Zeitung's self-described patriotic, anti-radical denunciation trip in the early 1970s. The most famous depiction of Bild in action is the Lost Honor of Katharina Blum, Heinrich Boell's story made into a movie by Volker Schloendorff.

The lesson of Lost Honor is partly that the attempt to root out internal enemies is itself a graver danger to freedom than the internal enemies themselves. The press can be enlisted in the cause of rooting out internal enemies.

Even through its polling, Fox is promoting a brand of journalism that veers too close to Springer's Bild for my taste. And Reynolds's view that the press must appear to be "patriotic" if it wants to safeguard free speech values seems a convenient justification for Bild-like efforts.

MORE: See above.