Don’t tinker with freedom of the press

Israel has no First Amendment, but it has a well-developed constitutional law that is justly protective of freedom of the press.

By ALAN DERSHOWITZ
Newspaper [Illustrative] (photo credit: Wikimedia Commons/Diego Grez)
Newspaper [Illustrative]
(photo credit: Wikimedia Commons/Diego Grez)
Whenever the government tries to tinker with the freedom of the press, citizens should become concerned. That is true even when the tinkering is well-intentioned.
There should be special concern when the law is directed at one newspaper, especially one that expresses controversial views. This is why I am opposed to the law currently pending in the Knesset that would prohibit newspapers from being distributed without charge.
The “bill for the promotion and protection of the written press in Israel” states that its purpose “is to promote and strengthen the written press in Israel, and to ensure equal protection for real and fair competition between the newspapers.” But the law itself restricts freedom of the press by prohibiting “the publication of a daily newspaper of wide circulation for free” (after more than six months).
Although no newspaper is mentioned by name, and the explanatory note says that “some newspapers are now distributed for free,” there can be little doubt that this law is intended to target only one newspaper, namely Yisrael Hayom.
Under American constitutional law, this legislative targeting might well be considered a Bill of Attainder. Our constitution prohibits the legislature from targeting specific individuals or entities, and requires that all laws be of general application, both in effect and in intent.
This law might fail such a test. But even if it did not, it would surely fail any reasonable test under our First Amendment, which guarantees untrammeled freedom of the press.
Historically some of the most important publications in history have been given out for free or at nominal cost.
Freedom of speech requires an open marketplace of ideas, and such a marketplace requires competition not only among the ideas put forth in the press, but also among the various newspapers themselves for survival in the commercial marketplace. The explanatory notes to the law states that “in many countries in the western world it is now customary to grant financial support to newspapers in order to ensure the continuation of their activity, which is essential to democracy.” Experience demonstrates that he who pays the piper not only calls the tune but often decides what tunes cannot be played.
Government financial support for the press is an invitation to government control over the press. That is why neither Israel nor the United States, both of which can rightfully boast of press freedom, are among the countries that provide financial support for newspapers.
Nor should they. Newspapers must stand or fall on their ability to attract readers, advertisers and, if necessary, contributors. The heavy thumb of government support must be kept off the scale. This bill is simply a back-door way of providing financial support to newspapers that charge their readerships by prohibiting their competitors from obtaining a competitive advantage by not charging. Freedom of the press includes the right to break into an established market by subsidizing the cost of publication and to remain in the market by continuing that practice.
It also protects the right of a business person to operate under a business model in which revenue is a function of advertising rather than of direct payment for the product. The government should have no right to tell the publisher of a newspaper how best to compete, how to maximize his political impact, how to earn a profit, how to increase circulation or how to run his or her business.
THE MAJOR competition to newspapers today is not other newspapers. It is the new media, especially the Internet. New media outlets employ diverse business models: some charge users directly; others do not, focusing instead on maximizing use and charging for advertisement.
The market will determine which models thrive and which don’t. This is as it should be, both for the new and old media. The government must not rig this market in favor of one model over others.
It may well be true that newspapers that charge will have a hard time competing with those that don’t. That is simply the nature of the marketplace.
Newspapers that charge will simply have to figure out better ways of getting their message out and earning a profit.
The United States Supreme Court has ruled that spending money is protected speech and that laws limiting such speech are generally unconstitutional.
But even those justices who have dissented from this approach agree that imposing any constraints on newspapers owned by wealthy families (such as The New York Times, The Washington Post, The Boston Globe) would run afoul of our First Amendment.
Israel has no First Amendment, but it has a well-developed constitutional law that is justly protective of freedom of the press. Moreover, the very absence of a written constitution imposes a greater burden on the Knesset to be certain that it does not enact laws that violate the spirit of freedom of the press.
This law, by dictating to a publisher how he or she may or may not distribute a newspaper, violates core principles of freedom and may be one step toward increasing government control over the press. It should be viewed skeptically by anyone who cherishes untrammeled freedom of the press and everyone who fears government regulation of the media.
The author has written extensively about freedom of the press including a recent article in The Australian entitled “Bans on Bigotry Backfire.” He has represented the Sands Corporation in various matters.