A Lawyer in our Midst:
Does Jerome Barron Deserve Canonic Status?
John F. Kirch
1
Introduction
The notion that there should be a canon of mass communication literature was
first proposed by Elihu Katz, John Durham Peters, Tamar Liebes and Avril Orloff in their
2003 book Canonic Texts in Media Research: Are There Any? Should There Be? How
About These? In their publication, Katz et al. “nominated” thirteen articles from the field
of communication that they felt were worthy of canonization. The texts were drawn from
five schools of communication research—Columbia, Frankfurt, Chicago, Toronto, and
British Cultural Studies—and included such classics as Marshall McLuhan‟s
Understanding Media and Stuart Hall‟s “Encloding/Decoding.”
In taking on this project during a conference in Jerusalem several years ago, Katz
and his co-editors acknowledged that their proposal to suggest a canon of media research
would generate controversy. In the introduction of their book, for instance, Katz et al.
began by writing, “Even without the double „n,‟ canons are explosive,” a clear
recognition that many communication scholars would not agree that such an undertaking
was good for the field. As Katz and his co-editors pointed out, when they first announced
their intention to edit such a book, several colleagues suggested that they abandon the
idea. “You can‟t do that,” one colleague said, while another compalined that creating a
canon would serve only to “stultify creativity.”1
Nevertheless, Katz, Peters, Liebes and Orloff went forward anyway, producing a
book that begins laying the groundwork for a canon of mass communication literature
that will surely be discussed in the years to come. But by publishing such a book, Katz et
al. have opened the door for additional nominations and debate over who should be
included on this list of monumental texts. There is no doubt that if there is to be a canon
2
of media research, the articles proposed in Canonic Texts should be strongly considered.
However, to limit the nominations to the five traditional schools of media studies is to
close the door on many other works that have also played a vital role in the development
of our understanding of the field.
It is the humble intention of this paper, then, to contribute to the debate by
nominating for canonization a 40-year-old article that raised profound questions about the
news media‟s ability to foster public discourse in American society. However, unlike the
articles included in Canonic Texts, the paper I nominate was not written by a traditional
communication scholar, but rather by a First Amendment lawyer who greatly influenced
the debate over free speech in the United States: Jerome A. Barron.
Who is Attorney Barron?
When Jerome A. Barron wrote his classic 1967 piece “Access to the Press: A
New First Amendment Right,” he surely did not think that his legal argument for a
government-enforced right-of-access to the news media would someday be nominated for
the canon of mass communication literature. It is more likely that Barron, a law
professor at The George Washington University, was concerned mainly with outlining a
strong constitutional case that would influence First Amendment jurisprudence for years
to come and open the press to points of view that had previously been excluded from
public discourse. Yet in the 36 years since Barron called for judicial and legislative
action to force news organizations to include minority voices in their reports—a remedy
he thought was necessary to correct an “anomaly in our constitutional law” that limited
“opportunities for expression”2—Barron‟s arguments have resonated throughout free
3
speech doctrine and have become the classic criticism of how the First Amendment is
interpreted by civil society and the courts.
Although Barron‟s views were ultimately rejected by the U.S. Supreme Court in
the 1974 case Miami Herald v. Tornillo, his controversial proposal to force newspapers to
comply with requirements similar to those faced by broadcasters under the Federal
Communications Commission‟s fairness doctrine sparked a “right-of-access” movement
that reverberated throughout news organizations and the legal system during the 1960s
and 1970s and continues to influence free speech thinking in the United States today. His
article, which appeared in the June 1967 issue of the Harvard Law Review, has been
identified as one of the most cited law review articles of all time3—a “locus classicus” in
the words of University of Alabama journalism professor Matthew Bunker.4 He has been
called “the leading proponent of an affirmative right of access” to the press;5 and his
work, particularly his follow-up book Freedom of the Press for Whom? The Right of
Access to Mass Media, has been called the “definitive document” on the right-of-access
interpretation of the First Amendment.6
More importantly, Barron‟s article deserves canonization because it changed the
landscape of the free speech debate by suggesting that private action—not just
government action—can be used to stifle expression and limit the range of opinions that
are reflected in the mass media. While traditional free speech debate had focused on the
ominous power of government to suppress unconventional thought, Barron was one of
the first to identify how corporate control of the news could lead to problems no less
severe than those imposed by public officials seeking to censor anyone who opposes the
state. What‟s more, Barron‟s proposed remedies were not simply words in a law review
4
article that died in the isolated halls of academia; he put his ideas to the test, personally
bringing them as far as the U.S. Supreme Court before they were eventually cast aside as
a dangerous attack on press freedom.
Finally, Barron‟s piece should be included in the canon of mass media because his
observations are still relevant today. The concerns he raised about a lack of diverse
viewpoints in the news have become ever more potent in a world in which fewer and
fewer corporations own an ever greater share of the mass communication industry. It
was not long ago that Ben Bagdikian warned that the continued consolidation of news
organizations would lead to a mass media that promotes “corporate values to the
exclusion of others;”7 and media critic Robert W. McChesney recently observed that “the
rise of this corporate media system augurs a moment of truth for the First Amendment
and its protection of a free press.”8 Neither Bagdikian nor McChesney endorsed the
views espoused by Barron, but their recent criticisms of corporate-owned media—along
with similar criticisms voiced by other legal and media scholars—harks back to the alarm
Barron first expressed four decades ago and illustrates the continuing power of his
insights.
Why Should a Lawyer be Nominated?
Before outlining Barron‟s argument and the influence his paper had, it is
important to first address those who might argue that Barron‟s work should not be
considered for the canon of mass communication literature because he is a professor of
law rather than a scholar who studies the mass media. Such opponents might reason that
parameters must be established to limit the potential selection of canonic texts or one
would throw the field into a state of utter chaos. If the text of a legal scholar could be
5
considered for the canon of mass communication literature, why not the work of a
historian, a political scientist, or a biologist? Where would it end? The underlying
concern of such arguments rests with how narrowly or broadly one wants to define the
field of mass communication. It is true that some limits must be placed on the boundaries
of any field, but where such lines are drawn is often hard to determine and open to many
interpretations. As Michael Gurevitch and Paddy Scannell put it:
A number of questions emerge when we consider the canonic status of any text in the
mass communication literature. The first has to do with identifying the boundaries of the
field. Defining the field of mass communication scholarship narrowly—that is, as a selfcontained and bounded field—the pool of works from which „canonic‟ texts are to be
selected will necessarily be fairly limited, and the works chosen will have to be assessed
as meriting such status within that small pool—as the bigger fish in a fairly small pond.
If, however, we locate mass communication research within the broader context of the
social sciences, or as a sub-area within the more general study of the sociology of
knowledge and culture, then the formerly big fish may be dwarfed by even bigger fish.
Canonic status is thus clearly relative. 9
What this implies, then, is that deciding how wide to cast ones net is anything but
an exact science. If deciding which texts are to be considered for canonic status is
“clearly relative,” the door is at least partially open to a wide array of work that may not
be considered part of the traditional literature on mass media. This is not to say that any
texts—regardless of how remotely related it may be to the field—should be considered
for such a high honor. But it is no stretch to argue that Barron‟s piece is of immense
importance to mass communication literature because of how it impacted free speech
doctrine in America. Although legal in nature, “Access to the Press” deals directly with
the very foundation of American journalism and mass communication: the First
Amendment. Moreover, one cannot separate the scholarly field of news media studies
from communication law. The two fields have been tied together from the founding of
the nation, when the framers of the Constitution thought it necessary to provide the press,
through the highest law in the land, with strong legal protections against government
6
interference. Further evidence of this partnership is manifested in the curriculum of
today‟s prominent journalism schools, many of which recognize communication law as
an essential part of journalism education. In this sense then, it is not stretching the
boundaries of the mass communication field too far to suggest that the work of a legal
scholar should be considered an essential text.
Finally, to nominate a text that comes from outside the traditional mass
communication literature, one should pay extra attention to the relevance that text carries
for the field. It is here that Barron‟s piece carries significance for journalists and scholars
of mass communication. Barron is not just any legal scholar—he is a lawyer who
concentrates specifically on the First Amendment, the very cornerstone of the freedoms
enjoyed by the press. His article cuts to the very heart of how journalism operates in the
United States. Reporters and editors frequently fall back on the freedoms they are
provided in the Constitution—indeed, they would find it impossible to operate without
these protections. Barron sought to change how those protections were interpreted. His
arguments, had they been accepted by the Supreme Court, would have done more to
change the nature of journalism than anything written about media effects, audiences, or
the other, more classical studies in media scholarship. For this alone, “Access to the
Press” should be considered an essential work for understanding the evolution of the
contemporary free speech debate in the United States.
The Barron Piece: History, Context and Impact
Barron wrote “Access to the Press” at a time of political upheaval in the United
States that centered primarily around the Vietnam War. By the mid- and late sixties,
college campuses were awash with protests as demonstrators began expressing their
7
opposition to the U.S. military involvement in Southeast Asia. To the dismay of many
resisters, however, the arguments they tried to make rarely found their way into
American newspapers. Edward S. Herman and Noam Chomsky, for example, have
pointed out that by 1965 the debate over Vietnam had narrowed to questions of cost and
tactics rather than a serious discussion over whether the war was morally right. “While
dissent and domestic controversy became a focus of media coverage from 1965,” they
wrote, “the actual views of dissidents and resisters were virtually excluded. These
individuals were presented primarily as a threat to order, and while their tactics might be
discussed, their views were not.”10
Rodger Streitmatter concurred. In writing about the dissident press, Streitmatter
said that as the conflict in Southeast Asia escalated, “mainstream American journalism
supported the effort, serving as exuberant cheerleaders for the military” and leaving the
task of criticizing the war to smaller, so-called “alternative newspapers.”11 Barron
himself recognized that one reason anti-war demonstrators had reverted to ever more
“attention-getting” tactics was because their views failed to get mentioned in most news
reports. “Sit-ins and demonstrations testify to the inadequacy of old media as instruments
to afford full and effective hearing for all points of view,” Barron said. “The dissenter
must look for ever more unsettling assaults on the mass mind if he is to have continuing
impact.”12
It was in this climate that Barron first laid out his argument for a new
interpretation of the First Amendment. The crux of his position rested on the notion that
American constitutional theory was based, at least partially, on the flawed assumption
that there is an open “marketplace of ideas” that automatically allows for the free flow of
8
viewpoints as long as government does not get in the way of the speaker. But if such a
marketplace ever really operated in the United States, Barron argued, “it has long ceased
to exist,” leaving the country with a dangerously outdated vision of the First Amendment
that has evolved into a “rationale for repression.”13 Said Barron:
Our constitutional law has been singularly indifferent to the reality and implications of
nongovernmental obstructions to the spread of political truth. This indifference becomes
critical when a comparatively few private hands are in a position to determine not only
the content of information but its very availability, when the soap box yields to radio and
the political pamphlet to the monopoly newspaper.14
Barron was particularly concerned that newspaper monopolies and new
technological developments in the communication industry had changed the media
landscape from the one envisioned by the founding fathers. In this new environment, he
said, government must play an active role—rather than staying on the sidelines—in
forcing news organizations to diversify the range of opinions carried over the airwaves or
published in newspapers. “First amendment theory must be reexamined,” he said, “for
only by responding to the present reality of the mass media‟s repression of ideas can the
constitutional guarantee of free speech best serve its original purpose.”15
To Barron, the remedy could be found in legislative and judicial action to regulate
print as well as broadcast news organizations. Like the requirements imposed on
broadcasters through the FCC‟s fairness doctrine, Barron said newspapers should be
forced by law to open their pages to comments by the general public. This “right of
access to the press,” as he called it, “could be rooted most naturally in the letter-to-theeditor column and the advertising section.”16 He said newspapers should be legally
compelled to provide a rational explanation for why an individual‟s letter or
advertisement was not printed, adding that editors and publishers should no longer be
9
permitted to reject unpopular viewpoints on arbitrary grounds. Only through such
government action, Barron argued, could the country secure “an effective forum for the
expression of divergent opinions.”17
The article had almost immediate impact. Citing Barron‟s proposal, freelance
writer Hazel Henderson said, “The battle now shaping up over the public‟s right of access
to the mass media may well be the most important constitutional issue of this decade.”18
According to Chomsky, Barron‟s ideas were met with “alarm” by journalists, many of
whom feared the precedent that would be set if newspapers were ever forced by
government to print material they would normally reject.19 Writing for Editor &
Publisher magazine a few months after “Access to the Press” was published, Robert U.
Brown questioned the basic premise behind Barron‟s proposal, saying he was “not aware
of any minority views not being expressed in print today.” If problems did exist, Brown
said, “how does one determine which of these minorities should be heard? Or are they all
to be heard with equal force?”20
Others questioned whether Barron had gone too far, although there was general
acknowledgment that “Access to the Press” was making a serious stir. Gilbert Cranberg
reported that “even severe critics of the press consider Barron‟s prescription for making
newspapers accountable to government strong medicine,” but he pointed out that
Barron‟s proposals were resonating with such groups as the American Civil Liberties
Union, which passed a resolution during its 1968 biennial conference that urged the
ACLU‟s national board of directors “to file suits to establish a legal right of access to the
press.”21 That Barron‟s piece was being taken seriously within the news media was made
even more evident in 1969 when the Freedom of Information Center at the University of
10
Missouri‟s School of Journalism published a report outlining the pros and cons of a rightto-access law, concluding that:
All in all, it is not far-fetched to predict that the courts and legislatures of the land might
one day be tempted to find in a right of access and a right of reply a way to get at the
death of newspaper competition and the alleged one-sidedness of the American press.22
The press was not the only institution to respond. The American Bar Association
scheduled a special session at its 1969 conference to discuss the possibility of a statute
that would guarantee the public a right of access to newspapers;23 and legal scholar David
L. Lange wrote a 91-page critique of Barron‟s access doctrine, saying the ground on
which it rested was “treacherous,” and concluding that “even the modest proposals must
be resisted in order both to avoid the „chilling effect‟ that they would permit [on the
press] and to foreclose their expansion into wider and still more obvious first amendment
encroachments.”24
Within the scholarly community, Barron‟s ideas were changing the very nature of
the First Amendment debate, which had traditionally assumed that government was the
biggest potential threat to press freedom. Starting with John Milton and later with John
Stuart Mill, early advocates of a free press argued that government must remain on the
sidelines if truth was to emerge from the free flow of information in the “marketplace of
ideas.” Fred Siebert wrote that the libertarian theory of the press used in the United
States and other western societies was built on the notion that “the prime function of
society is to advance the interests of its individual members” and that care must be taken
to ensure that the state does not become “the highest expression of human endeavor.”25
As Siebert said: “The essential characteristic of this process was [the press‟s] freedom
from government controls or domination.”26
11
The marketplace metaphor, with its emphasis on reducing government‟s influence
over speech, grew under the auspices of twentieth century scholars like Alexander
Meiklejohn and Zechariah Chafee Jr. While Meiklejohn expressed doubt about Milton‟s
faith that truth always wins in a fair fight with falsity in the marketplace of ideas, he
nevertheless argued that “the people need free speech because they have decided, in
adopting, maintaining and interpreting their Constitution, to govern themselves rather
than to be governed by others.”27 Likewise, in arguing that all viewpoints must be
welcome in the marketplace so as not to drive potentially dangerous opinions into hiding
where they could brew undetected until they posed a threat to society, Chafee identified
government, not the owners of mass media, as the most likely institution to suppress
unconventional ideas. He argued that no government could force true loyalty on its
citizens by censoring the views of those who disagree with its policies.28 Thomas I.
Emerson also focused on the potential dangers of the state, arguing that freedom of
expression is necessary for four reasons: to assure individual self-fulfillment; to help
society attain truth; to secure the rights of individuals to participate in political decision
making; and to maintain a balance between stability and change in society.29
Barron‟s concentration on the owners of the media was a different twist in the
traditional debate over free expression. If Barron was to have his way, government
would no longer be seen as the major barrier to freedom of the press. This is not to
suggest that Barron was the first scholar to introduce this concept into the lexicon of First
Amendment thinking, however. In 1956, Theodore Peterson outlined the dangers of
corporate control over the media, explaining that the press had come under sharp
criticism in the early twentieth century because its owners had “propagated their own
12
opinions … at the expense of opposing views.”30 Upton Sinclair and George Seldes
agreed, expressing alarm that advertising pressures on newspapers acted to curtail speech
that was viewed as harmful to big business;31 and the Commission on Freedom of the
Press had similar concerns when it issued its report in 1947 that outlined its suggestions
for how the news media could play a more responsible role in American society, although
the commission issued a dire warning against the use of government to solve any
problems relating to mass media.32
What made Barron different is that he laid out the practical legal solutions of how
to remedy the problem of access to the media. He also rejected the warnings of the
Commission on Freedom of the Press, becoming the first to push the idea that
government was the solution, rather than the problem, when trying to ensure diversity of
viewpoints in the news. His article in the Harvard Law Review was his first shot in an
attack on what he saw as private censorship of the news. “Access to the Press” was not
intended to be a long-winded diatribe that withered in solitude, but rather an ideological
change in thinking that Barron planned to take to the courts.
Within two years of publishing “Access to the Press,” the U.S. Supreme Court
was faced with just such a test case when a Pennsylvania broadcaster challenged the
constitutionality of the fairness doctrine, which required radio and television stations to
provide free reply time (or access to the media) to anyone who had been personally
attacked on that station. In a unanimous decision, the Court upheld the fairness doctrine
in Red Lion Broadcasting Co. v. Federal Communications Commission, saying that
broadcasters do not have the right to “snuff out the free speech of others,” and adding that
“it is the right of the viewers and listeners, not the right of the broadcasters, which is
13
paramount.”33 The decision, although it did not pertain to print journalism, was seen as a
major victory for Barron‟s right-of-access doctrine and a step toward the new
interpretation of the First Amendment that he envisioned. Now that the Court had
recognized the government‟s right to take affirmative action to guarantee the free flow of
opinion through the broadcast media, Barron‟s supporters believed it was at least possible
that the same logic would be applied to newspapers.
The test came when the Miami Herald newspaper challenged the constitutionality
of a right-to-reply statute in the state of Florida. In this case, the newspaper had
published several articles that criticized Pat Tornillo, a candidate for the state House of
Representatives, but refused to print Tornillo‟s response. The candidate filed suit against
the Herald, charging that it had violated a state law that required newspapers to provide
political candidates with equal space to reply to criticisms published in that newspaper.
The Herald won at the circuit court level, but the case was appealed to the Florida
Supreme Court, where Barron acted as counselor for Tornillo and won perhaps his
biggest victory. In Pat L. Tornillo v. The Miami Herald Publishing Company, the state‟s
highest court upheld Florida‟s right-to-reply law, saying it “enhances rather than abridges
freedom of speech and press protected by the First Amendment.”34 The court found:
The statute here under consideration is designed to add to the flow of
information and ideas and does not constitute an incursion upon First Amendment rights
to prior restraint, since no specified newspaper content is excluded. There is nothing
prohibited but rather it requires, in the interest of full and fair discussion, additional
information.
The right of the public to know all sides of a controversy and from such
information to be able to make an enlightened choice is being jeopardized by the growing
concentration of the ownership of the mass media into fewer and fewer hands, resulting
ultimately in a form of private censorship…Freedom of expression was retained by the
people through the First Amendment for all the people and not merely for a select few.
The First Amendment did not create a privileged class which through a monopoly of
instruments of the newspaper industry would be able to deny to the people the freedom of
expression which the First Amendment guarantees. 35
14
The court‟s language mirrored that used by Barron in his “Access to the Press”
article and illustrates the influence his ideas carried during this period.
Unfortunately
for the right-of-access movement, however, this victory was short lived. One year later,
the U.S. Supreme Court heard the Miami Herald‟s appeal and ruled the Florida statute
unconstitutional. Once again, Barron argued the case for Tornillo, but this time he was
met with disdain by the justices, who voted 9-0 against his position.36 In its decision, the
Court said the Florida statute might actually dampen public debate by encouraging
editors to avoid controversial topics as a way to guard themselves against the right-ofreply requirements. However, the Court‟s main argument relied on traditional First
Amendment thinking by identifying government as the primary threat to free speech.
Said the Court:
Even if a newspaper would face no additional costs to comply with a compulsory access
law and would not be forced to forgo publication of news or opinion by the inclusion of a
reply, the Florida statute fails to clear the barriers of the First Amendment because of its
intrusion into the function of editors… The choice of material to go into a newspaper,
and the decisions made as to limitations on the size and content of the paper, and
treatment of public issues and public officials—whether fair or unfair—constitute the
exercise of editorial control and judgment. It has yet to be demonstrated how
governmental regulation of this crucial process can be exercised consistent with First
Amendment guarantees of a free press as they have evolved to this time. 37
Although Barron lost at the highest level, the mere fact that his proposals were
fought out in the Supreme Court is perhaps the biggest indicator of his influence over free
speech debate during the sixties and seventies. Moreover, in deciding against Barron in
the 1974 Miami Herald case, the Court may have actually handed a partial victory to
those who support a right-of-access statute. Part of Barron‟s argument rested on the
notion that newspaper owners were hiding behind the First Amendment as a way to
practice private censorship that was just as serious as any imposed by the state. Although
the Court refused to grant government the power to compel newspapers to publish
15
material that editors deem unworthy, the justices refrained from recognizing that
newspaper owners had a special right over the news not enjoyed by the general public.
According to an analysis of the decision by McChesney:
It is worth noting … that the Supreme Court did not directly state that the right of the
First Amendment belonged [exclusively] to the owners [of newspapers]… Clearly, the
Court accepted the traditional presupposition that there is no important distinction
between owners and editors, and its concern was to protect editors, not investors. 38
This is an important point because it implies a recognition that other parties—
such as the general public—have a vested interest in the viewpoints that are reflected in
print and broadcast news reports. In addition, by not granting the owners of news
organizations an exclusive hold on the First Amendment, the Court may have helped
keep Barron‟s ideas alive. In the years since Miami Herald, the courts have considered
variations of Barron‟s proposals that have at least partially kept open the possibility that
some right-of-access could be granted in the future. In 1981, for example, the U.S.
Supreme Court affirmed the FCC‟s right to require broadcasters to provide air time to
candidates for federal elected office, creating a “limited right of reasonable access to the
broadcast media…”39 More recently, Justices Stephen Breyer and David Souter, along
with Justice John Paul Stevens, have instituted a new balancing test that recognizes the
First Amendment interests of those who consume media. In a 1998 law review article
that analyzes the new balancing test, Barron wrote:
Traditional balancing approaches focused on balancing the interest of government against
the interest of the media owner. The new balancing casts a wider net and recognizes that,
in the contemporary electronic media context, many speech interests seek access. The
new balancing analysis does not give primacy to one interest over another, but instead
seeks to account for the multiplicity of interests and to weigh the relative strength of the
competing access interests. In short, the new balancing analysis highlights the entire
gamut of interests in play.40
16
Outside the courts, Barron‟s ideas still resonate with contemporary theorists, who
borrow extensively from the concerns he expressed in 1967 and offer a variety of
solutions to try to solve the problems he articulated. Doris A. Graber has expressed
concern over how the concentration of media ownership “stifles the uninhibited
expression of ideas,”41 and she has suggested that “the definitions for what constitutes
monopoly control might be made more rigorous for the media than for other
businesses.”42 Judith Lichtenberg echoed these sentiments, arguing that “regulation is
needed just because private power poses a grave threat to the independence and integrity
of the press;”43 and Matthew D. Bunker pointed out that several constitutional theorists
are now arguing that the First Amendment can be violated not just by government but
also by “private action,” that is the act of “private actors to suppress speech…”44
Likewise, attorney Christopher J. Sichok has followed closely in Barron‟s
footsteps, making the case that American culture has shifted from a civil to a consumer
society that has dampened the spirit of the First Amendment. Laying the blame for this
change on a Supreme Court that has upheld “the expression rights of corporations and
purveyors of the status quo,” Sichok mimicked the arguments Barron made three decades
ago when he called for judicial action that reorients “First Amendment analysis in such a
way that the rights of hearers, not speakers, are paramount.”45 Lawrence Soley might
agree. In 2002, he argued that “as corporate power increased during the last decades of
the twentieth century … freedom of speech has ebbed.”46 To combat this, Soley has
suggested several remedies: the courts should reverse previous decisions that recognize
corporations as having the same rights as individuals; new laws should be passed that
17
require the broadcast media to give free, equal time to candidates running for political
office; and new laws are needed that prohibit corporations from censoring speech.47
Each of these proposals offer slight modifications to the ideas Barron pushed so
hard for in the sixties and seventies and illustrates once again the continuing influence of
“Access to the Press” as a major criticism of conventional First Amendment thinking.
But there is no better example of how Barron‟s concerns still resonate than in the reports
and commentary of contemporary media watchers. The Media Reform Information
Center, for example, touched on a major Barron concern when it reported recently that
the number of corporations that control the majority of news media in the United States
has dropped from 50 in 1983 to six in 2000.48 In addition, the media watchdog group
Fairness & Accuracy In Reporting issued a paper last March in which it criticized
television network news stories about the then-impending war against Iraq because they
were “dominated by current and former U.S. officials” and because they “largely exclude
Americans who are skeptical of or opposed to an invasion of Iraq.”49
What all of this suggests is that Barron‟s article “Access to the Press” has made a
major contribution to the literature of mass communication. Not only did Barron‟s work
create fear within the news media of the time, but the ideas expressed in the piece became
a central focus of First Amendment thinking as his proposals were debated in the judicial
system. Beyond that, Barron‟s concerns of 1967 are the same as today, and scholars
continue to draw on his arguments in warning about corporate mergers that dwindle the
number of players in the mass media industry. For all these reasons, Barron‟s “Access to
the Press” deserves to be canonized as a major challenge to conventional free speech
doctrine.
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Notes
1
Elihu Katz et al., Canonic Texts in Media Research: Are There Any? Should There Be? How About
These? (Malden, Massachusetts: Blackwell Publishers Inc., 2003), 1.
2
Jerome A. Barron, “Access to the Press: A New First Amendment Right,” Harvard Law Review, 80 (June
1967): 1641.
3
Fred R. Shapiro, “The Most-Cited Law Review Articles Revisited,” Chicago-Kent Law Review (January
1996): 767.
4
Matthew D. Bunker, “Constitutional Baseline: First Amendment Theory, State Action and the „New
Realism,‟” Communication Law and Policy (Winter 2000). The reference to “locus classicus” is made in
footnote 26 of Bunker‟s paper.
5
David L. Lange, “The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical
Review and Assessment,” North Carolina Law Review (November 1973): 8.
6
Fred W. Friendly, The Good Guys, The Bad Guys and the First Amendment: Free Speech vs. Fairness in
Broadcasting (New York: Vintage Books, 1977), 192.
7
Ben H. Bagdikian, The Media Monopoly Sixth Edition (Boston: Beacon Press, 2000), 6.
8
Robert W. McChesney, “The New Theology of the First Amendment,” Monthly Review 49, no. 10 (March
1998), available at <http://www.monthlyreview.org/398rwm..htm> 9 May 2003.
9
Michael Gurevitch and Paddy Scannell, Canonization Achieved? Stuart Hall’s “Encoding/Decoding,” in
Canonic Texts in Media Research: Are There Any? Should There Be? How About These? ed. Elihu Katz,
John Durham Peters, Tamar Liebes and Avril Orloff (Cambridge, United Kingdom: Polity Press, 2003),
231.
10
Edward S. Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass
Media (New York: Pantheon Books, 2002), 172.
11
Rodger Streitmatter, Voices of Revolution: The Dissident Press in America (New York: Columbia
University Press, 2001), 184.
12
Barron, “Access to the Press,” 1647.
13
Ibid, 1642.
14
Ibid, 1643.
15
Ibid, 1641-1642.
16
Ibid, 1667.
17
Ibid, 1678.
18
Hazel Henderson, “Access to the Media: A Problem in Democracy,” Columbia Journalism Review
(Spring 1969): 7.
19
Noam Chomsky, Necessary Illusions: Thought Control in Democratic Societies (Boston: South End
Press, 1989), 133.
20
Robert U. Brown, “Compulsory Publication,” Editor & Publisher (16 December 1967): 60.
21
Gilbert Cranberg, “Is „Right of Access‟ Coming?” Saturday Review (8 August 1970): 48.
22
Access to the Press: A New Right? (Columbia, MO: Freedom of Information Center, Report No. 216,
March 1969), 8.
23
Cranberg, “Is „Right of Access‟ Coming?” 48.
24
Lange, “The Role of the Access Doctrine in the Regulation of the Mass Media,” 89, 90.
25
Fred S. Siebert, “The Libertarian Theory of the Press,” in Four Theories of the Press, ed. Fred S. Siebert,
Theodore Peterson, and Wilbur Schramm (Freeport, NY: Books for Libraries Press, 1956; reprint,
University of Illinois Press, 1973), 40.
26
Ibid, 51.
27
Alexander Meiklejohn, The First Amendment is an Absolute, in Free Speech and Association: The
Supreme Court and the First Amendment, ed. Philip B. Kurland (Chicago: The University of Chicago
Press, 1961), 19.
28
Zechariah Chafee Jr., Free Speech in the United States (Cambridge, MA: Harvard University Press,
1954), 565.
29
Thomas I. Emerson, Toward a General Theory of the First Amendment (New York: Random House,
1963, 1966), 3-15.
19
30
Theodore Peterson, “The Social Responsibility Theory of the Press,” in Four Theories of the Press, ed.
Fred S. Siebert, Theodore Peterson, and Wilbur Schramm (Freeport, NY: Books for Libraries Press, 1956;
reprint, University of Illinois Press, 1973), 78.
31
Upton Sinclair, The Brass Check: A Study of American Journalism (New York: Arno Press, 1970, reprint
ed.); George Seldes, Freedom of the Press (Garden City, NY: Garden City Publishing Co., Inc., 1937);
cited in Fred S. Siebert, Theodore Peterson, and Wilbur Schramm, Four Theories of the Press (Freeport,
NY: Books for Libraries Press, 1956; reprint, University of Illinois Press, 1973), 79.
32
Siebert, Peterson, and Schramm, Four Theories of the Press, 82.
33
Red Lion Broadcasting Co., Inc., et al. v. Federal Communications Commission et al., 395 U.S. 367,
390.
34
Pat L. Tornillo, Jr., v. The Miami Herald Publishing Co., 287 So. 2d 78, 80.
35
Ibid, 82-83.
36
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. As Robert McChesney pointed out in his March
1998 article “The New Theology of the First Amendment,” which appeared in the Monthly Review:
“Justice William O. Douglas displayed his utter contempt for Barron‟s position by reading a newspaper
during his argument.”
37
418 U.S. 241, 258.
38
McChesney, “The New Theology of the First Amendment.”
39
CBS, Inc. v. Federal Communications Commission et al. 453 U.S. 367, case summary.
40
Jerome A. Barron, “The Electronic Media and the Flight From First Amendment Doctrine: Justice
Breyer‟s New Balancing Approach, University of Michigan Journal of Law Reform (Summer 1998): 817.
41
Doris A. Graber, “Press Freedom and the General Welfare,” Political Science Quarterly, 101, no. 2
(1986): 261.
42
Ibid, 273.
43
Judith Lichtenberg, “Foundations and Limits of Freedom of the Press,” Philosophy and Public Affairs, 16
(Autumn 1987): 353.
44
Bunker, “Constitutional Baseline: First Amendment Theory, State Action and the „New Realism,‟” 2.
45
Christopher J. Sichok, “The Free Market: An Erosion of Free Speech,” Murdoch University Electronic
Journal of Law, 7 (September 2000), available at
<http://www.murdoch.edu.au/elaw/issues/v7n3/sichok73_text.html>18 April 2003.
46
Lawrence Soley, Censorship Inc.: The Corporate Threat to Free Speech in the United States (New York:
Monthly Review Press, 2002), 135.
47
Ibid, 257-258.
48
Media Reform Information Center report, available at <http://www.corporations.org/media>18 April
2003.
49
In Iraq Crisis, Networks Are Megaphones for Official Views (New York: Fairness & Accuracy in
Reporting, 18 March 2003), available at <http://www.fair.org/reports/iraq-sources.html>7 May 2003.