Ohio History Journal

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Book Reviews

Book Reviews




The Fourth Estate and the Constitution: Freedom of the Press in America. By Lu-

cas A. Powe, Jr. (Berkeley: University of California Press, 1991. xii + 357p.;

notes, index. $29.95.)


In 1735, John Peter Zenger, who as a result of his legal misfortune was to be-

come America's most famous printer, was anxiously awaiting the outcome of his

criminal trial before a colonial court in New York. Zenger was charged with sedi-

tious libel for publishing a journal containing articles critical of the governor. Fol-

lowing a trial wherein his counsel's chief strategy was to plead the novel and

theretofore unrecognized defense of "truth," Zenger was eventually acquitted by

a jury, and, in the estimation of many legal scholars and historians, the principle

of "freedom of press" took on new meaning in Anglo-American legal culture.

Lucas A. Powe, Jr.'s, superb new book on the First Amendment opens with ref-

erence to the Zenger case which he acknowledges to be "synonymous with free-

dom of press." Yet, unlike others of its type, Powe's exposition immediately chal-

lenges this notion of the resoluteness of press freedom as he introduces his reader

to a case decided nearly a century later with which to compare and examine the

extent to which such press freedoms had in fact been secured. In recounting the

1905 conviction of Denver Times publisher Tom Patterson for contempt of court

stemming from his editorial criticism of the Colorado Supreme Court, he reminds

his readers, First Amendment novices and sophisticates alike, that constitution-

al guarantees, even those as seemingly inviolate as freedom of the press, do not

just spring into existence, nor are they impervious to efforts to redefine and qual-

ify their scope and application. He admonishes the uninitiated that "law is not self-

enforcing," and that "no matter how much society attempts to sanitize the judi-

cial process, human beings are the instruments of law enforcement." This simple

tenet helps to illuminate the reasons for the seeming inconsistencies and unpre-

dictability of the evolution of the law of press freedom.

Powe frames his central thesis around the issues of the limits of dissent and the

laws of decision-making about those limits, issues which go to the "heart of a

democratic society." While he raises some of the traditional questions such as

what, at a minimum, must freedom of the press protect, he also asks the intrigu-

ing question of whether society can compel the press to perform its appropriate

role. The latter question implies that in exchange for a virtually unrestricted priv-

ilege to print what it pleases, the press owes society the obligation of informing

the people on matters of public interest and importance. It is not clear, after read-

ing his book, exactly what Powe feels is the appropriate role of the press; perhaps

that uncertainty is merely a reflection of the ambivalence society feels toward the

press in general.

Powe effectively weaves an interesting vignette about the Tom Patterson case.

Patterson, the owner/editor of the Denver Times, wrote an editorial about the Col-

orado Supreme Court whom he charged with theft of the Denver elections.

Following such accusations, the Colorado Attorney General issued an order for

Patterson to show cause why he should not be held in contempt of court. Despite

the procedural oddity, the gravity of the government's coercive intentions toward

dissenters is not lost. In this twentieth century example of the government's use