by Dan Rather
Back in 1896 in Plessy v. Ferguson, all but one justice voted to uphold legalized segregation and the so-called separate but equal doctrine. The lone dissenter was Justice John Marshall Harlan, who famously admonished his fellow jurists and the nation as a whole: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” More than a half century later, the Supreme Court would validate Harlan’s humanity with a unanimous decision in Brown v. Board of Education. Over the decades, dissents on the court have also pointed the way forward on the right to privacy, criminal justice reforms, gay rights, and other protections on which the law has moved toward what were once minority views.
In World War I, the country was gripped with a paranoia not unlike that found during the Red Scare. Congress passed an Espionage Act and a Sedition Act that were used to prosecute and imprison men and women for their speech, including the famous socialist labor leader Eugene Debs, who would run for president in 1920 while in prison and garner nearly one million votes. These restrictions on dissent were brought to the Supreme Court, and they were resoundingly upheld. And yet out of this period of restriction came one of the most stirring articulations of the importance of dissent in American history. Fittingly, and perhaps almost poetically, it came in an actual dissent.
The case was Abrams v. United States (1919), and it involved a group of Russian immigrants who had distributed pamphlets advocating against the war effort. They were arrested under laws limiting speech and were sentenced to up to twenty years in prison. The Supreme Court justices had twice ruled unanimously to uphold the constitutionality of congressional acts to stifle dissent during World War I, and in both cases, the opinion was written by Justice Oliver Wendell Holmes. But in the wake of the previous decisions, Holmes had been beset by friends and legal scholars who felt he and the court had gone too far in suppressing speech. When the decision came down in Abrams, the convictions were upheld, but it was not unanimous. Two justices dissented, including Holmes.
Holmes was one of the greatest legal minds in American history, and what emerged from his dissent in Abrams is a passionate plea for the importance of dissent and free expression. Holmes had come to his decision by listening to others who had disagreed with him. His dissent was, therefore, a product of dissent. He had been challenged in a marketplace of ideas, and he had changed his mind. Now he was determined that others have the same opportunity.
“The ultimate good desired is better reached by free trade in ideas . . . ,” Holmes wrote in his dissent. “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. . . . I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
The strength of Justice Holmes’s dissent shaped the future of American law. How we conceive of our First Amendment protections today much more closely resembles his views than that of the majority in Abrams. And yet, the need to remain vigilant in protecting the right to dissent remains as urgent as ever. Recently we have seen a level of public protest unlike anything we have witnessed in decades. Dissent is about marching, and making one’s voice heard in the streets and at the ballot box. But at the same time, there are strong voices calling this dissent unpatriotic and dangerous. We cannot let the forces of suppression win. America works best when new thoughts can emerge to compete, and thrive, in a marketplace of ideas. It’s a testimony to the wisdom of those who founded our republic and to the courage of all the dissenters who have come forward ever since.
The Press
In his novel 1984, George Orwell laid out a dystopian vision of a world where words cease to have meaning, history is continually rewritten, and the notion of truth is forever lost. The book was first published in 1949 (in the aftermath of World War II and the dawn of the Cold War), but its exploration of a society in which propaganda is the only currency of communication is resonant once more. I am not surprised that a new generation of readers is seeking out Orwell’s masterpiece to make sense of our current age.
Orwell understood that a government that is beyond the reach of accountability has little incentive to tell the truth. Indeed, its power may arise from the obliteration of objective facts. In the world of 1984, contradictory statements lose all sense of context and we are left with preposterous slogans: “War Is Peace. Freedom Is Slavery. Ignorance Is Strength.” And yet Orwell asks us, if there is no one with the power to call out a lie as a lie, does it end up ceasing to be a lie?
Orwell certainly was not the first to perceive the corrupting effects of unfettered power on the discourse of democracy. Our Founding Fathers, after breaking free from monarchical subjugation, were determined to construct a government of checks and balances on absolute concentrated power. So they created a federal system with differentiations between state and national control, as well as three branches of government with distinct powers and responsibilities that had to answer to one another. But, not satisfied that that was enough, they added ten amendments to the Constitution. And in the very first of those amendments, they established what has become an insurance policy for the continued health of the republic: a free press. As a working journalist, I know I have a stake in this concept. But as a grandfather who wants to see his grandchildren live in a country at least as free as the one I have enjoyed, a free press is even more relevant now than ever.
The role of the press is to ask hard questions and refuse to be deterred even when someone powerful claims, “Nothing to see here.” At first glance, it might seem as if the press is a destabilizing force: It can undermine the credibility of our elected officials and ultimately our confidence in government. It can drive down stock prices and embolden our nation’s critics and enemies. It can uncover inconvenient truths and stir divisions within our society. But our Founders understood that long-term accountability is more important than short-term stability. Where would America be without the muckrakers of the progressive era, like Ida Tarbell, who uncovered the perfidy and immorality of the Standard Oil monopoly under John D. Rockefeller; without the New York Times’s publishing of the Pentagon Papers, which exposed the lies around the Vietnam War; without the dogged work of the Boston Globe in documenting sexual abuse within the Catholic Church? Because of the press, powerful institutions were held accountable for their actions, and we became a stronger nation.
Presently, the institution of a free press in America is in a state of crisis greater than I have ever seen in my lifetime, and perhaps in any moment in this nation’s history. The winds of instability howl from many directions: a sustained attack on press freedom from those in political power, crumbling business models, rapidly changing technologies, and some self-inflicted wounds. This is a test, not only for those of us who work in journalism, but also for the nation as a whole.
The most immediate threat comes from the dangerous political moment in which we find ourselves. We have seen individual journalists and some of our best press institutions singled out for attack by the highest of elected officials for reporting truths that the powerful would rather remain hidden; for pointing out lies as lies; and for questioning motivations that deserve scrutiny. It would be easy to fill this essay, and indeed entire volumes, with examples of these recent outrages against the press and to call out the chief culprits in these assaults on our constitutional freedoms. I suspect much scholarship in the future will be dedicated to just such topics. But I am less interested in naming names than in explaining the larger forces at play, which have been years, if not decades, in the making.
Of course there has always been friction between
those in power and the journalists tasked with covering them. George Washington complained that the press treated him unfairly, and I imagine every president since then has felt similarly at some point in his tenure in office. But as a public official in the United States, you agree to subject yourself and your actions to scrutiny. And for most of my early life and career, I had a sense that politicians, especially those at the national level, understood this compact. Even as they tried to hide things or shift attention away from scandal, they knew they could not afford to disengage from the press.
The presidency of Richard Nixon was different and became an inflection point in the history of the free press in the United States. That he was ultimately brought down by investigative journalism does not diminish the damage done during his tenure in office. In the decades since, we have learned of the lengths he was secretly willing to go to to undermine the press, such as tapping into reporters’ phone lines and pressuring their corporate bosses. But even Nixon’s public statements, as well as his public actions, made clear his antipathy to the fourth estate; he attacked the press, disengaged from them, and instituted a strategy of sidelining national media outlets in favor of staged events and interviews with local reporters—reporters who, in what would likely be their one and only interview with a president, were less willing to ask hard questions.
The ignominy with which Nixon left office should not detract from the effectiveness of his press strategy. And it is not an accident that one of the architects of this strategy was a young Roger Ailes, who would advise future Republican presidents and then monetize the demonization of a supposedly “biased” press by creating Fox News. Ailes understood that there were long-simmering currents among millions of Americans who felt persecuted by liberal elites and by extension the national press headquartered in places like New York. This antagonism was not theoretical and could be violent. Senator Joseph McCarthy tarred journalists during the communist witch hunts (during which time CBS was called the “Communist Broadcasting System”), and later local and state politicians attacked the press for its coverage of civil rights (and CBS gained the nickname the “Colored Broadcasting System”). But Nixon was the first to do it on the national level—and win the presidency. I don’t think those of us in the press grasped the full import of what had happened.
None of us could have predicted how technological and regulatory changes would usher in a new media landscape that, building on the Nixon legacy, would transform the very nature of news. In 1987, under President Ronald Reagan, the Federal Communications Commission (FCC) abolished the Fairness Doctrine. In place since 1949, it had stipulated equal airtime for differing points of view. In this environment where media outlets felt less compelled to present balanced political debate, AM radio stations in particular started to switch to a lucrative form of programming best exemplified by Rush Limbaugh—right-wing talk radio. For hours on end, Limbaugh, and others who followed his lead, would present their view of the world without rebuttal, fact-checking, or any of the other standards in place at most journalistic outlets. Often their commentary included bashing any media coverage that conflicted with the talk-radio narrative.
In the 1980s and 1990s the advent of cable television broadened what had been a limited number of stations into a diverse lineup of niche networks. Into this business opportunity stepped Fox News and Mr. Ailes. The sales pitch here was subtler than talk radio; Fox News portrayed itself as a full-fledged news outlet that was a corrective to the liberal press. There are some fine journalists who have worked and continue to work at Fox News. But the majority of programming is opinion rather than news, and this opinion is often in service of conservative political objectives regardless of the facts.
More recently, the entire journalism business model has been upended by the rise of the Internet and, even more recently, social media. Suddenly anyone can be a news publisher, regardless of their expertise, sense of fairness, or motives. In this digital free-for-all, the New York Times can seem like just another website alongside a propaganda outfit like Breitbart. And “fake news” from individual or state actors can spread like wildfire through Facebook, Twitter, and other similar outlets. In 1984, Orwell could only imagine a tyrannical central government having the power to systematically undermine objective truth. Today we see that process happening organically through millions of social media “shares.”
I know my critics will claim the narrative I have laid out above is proof of my own liberal bias. It is a charge I have heard for decades, a personal echo of the larger attacks on this nation’s major journalistic institutions. I do not think the bias attack against the American press holds up to scrutiny. Reporters by their nature tend to be suspicious, especially of accrued power, and that usually extends to party politics. Democratic presidents have had to withstand withering press coverage, from Lyndon Johnson’s handling of the Vietnam War to Jimmy Carter’s reputation for ineffectualness. And with some of this coverage, like the overblown Whitewater “scandal” during Bill Clinton’s term and the distortions around Barack Obama’s health care bill, Democrats have argued that they have been treated unfairly by the press—with some justification. I have no doubt that many conservatives believe that the press is biased, but I believe the political leaders and activists who assiduously stoke these fears are doing so cynically. They see press attacks as a way to rally their base and distract voters from the weaknesses of their own candidates, without having to answer specific allegations.
The effects of the sustained attacks on the press have become cumulative, intimidating reporters—and, more important, editors, publishers, and owners—in newsrooms across the country. Despite the negative perception in some circles, almost every American journalist I have ever met is at the core patriotic. We wish our fellow Americans well. We hope our government leads with moral clarity and wisdom. And we want it to succeed in making us a more peaceful, prosperous, and just country. Nevertheless, our constitutional role often puts us in an adversarial position to our government. These days, I fear that the pull of our inborn patriotism combined with a fear of being labeled un-American clouds that role, with real and potentially corrosive effect. These are forces every journalist must be aware of, and on guard against. But often our individual defenses fail, and sometimes they fail en masse with disastrous consequences. I consider my biggest journalistic failure to be one in which I unfortunately was not alone. In the lead-up to the second Iraq War, when the American public needed a strong and independent press, too many of us blinked and the nation was far worse for our drifting from our core purpose.
On the morning of September 11, 2001, as I rushed to the CBS News broadcast studio, I could see the columns of smoke rising amid a brilliant blue sky. I knew that our country was facing a bloody and tragic test, the depths of which would be unknowable for some time. It is easy to forget what those days, weeks, and months that followed felt like. “Al-Qaeda” became a household word, and there was palpable fear that another large-scale attack was imminent. The immediate task in newsrooms like ours was to make sense of the moment. Reporters worked long, difficult shifts chasing down the names of the victims and telling the stories of the families they left behind. We investigated how the horrific terrorist plan had come together, and how it was executed. We provided context by examining al-Qaeda attacks of the past, and we explained the rise of Osama bin Laden. The American public was contending with waves of sorrow, pain, fear, and anger. They were hungry to know more about what had happened.
The focus shifted almost immediately to Afghanistan, where the masterminds of the mass murder of 9/11 had found sanctuary. And when American men and women in uniform headed to Afghanistan to fight, reporters were embedded with units to cover the story. In general, there was not enough skepticism at the time in our reporting. We should have asked harder questions about whether we were committing enough resources to the war, and whether the special operations – led campaign was the right approach.
Then, almost immediately, we started hear
ing from high-level officials in the George W. Bush administration, especially Vice President Dick Cheney, of a place that had been off the radar of most Americans for some time: Iraq. And soon we were at war with another country.
By all assessments, Iraq was a bloody and costly conflict that was poorly planned and poorly executed, not so much in the initial military campaign but in the rationale for invasion in the first place and then the management of occupation. Almost all of the press, myself included, accepted the selling of the war around “weapons of mass destruction” with far too little skepticism. The term “WMD” was a brilliant marketing campaign by the Bush administration to conflate the Armageddon scenario of a nuclear weapon (although most experts believed Iraq didn’t have anywhere near the capability) with the specter of chemical weapons, which, while horrific, are much more limited in scope. This wasn’t simply a vague case of “fake news.” It was subtle propaganda, with just enough of an air of plausibility to lull a nation into a war of choice. And yet the press continued to use the term “WMD” up to and after the war. Meanwhile, the links of Iraq to al-Qaeda, which we now know were nonexistent, involved so much nuanced explanation of people and groups with foreign names that it was easy for the administration to sow confusion to sell its policies. And the press didn’t do enough to try to explain the differences. As the military effort in Iraq became an increasingly fractious occupation, the press began to ask harder questions, despite the predictable blowback from the administration. Much of what we now know about what happened in Iraq is because of great journalism. But the policy decisions had already been made and the damage had already been done.
