Washington Law Review


In the decade of the 1940's, particularly in the years just after World War II, freedom of the press, which had been newly elevated and protected by the Supreme Court in the 1930's, began to suffer the corrosive effects of doubt about the strength of the American political system. Among the devastations of war was the failure of the intellectuals' confidence in the mettle of the American citizenry. By the mid-1960's, one consequence was clear: The first amendment no longer meant that the American press was expected to speak freely; it had begun to mean that much of what the press said had to be responsive to assumptions about those who might receive the communication. The idea of a public "right to know" had begun to undermine the solid foundations of press freedom. Since 1964, the Court has elevated the idea of a right to know to such an extent that the traditional imperative of a right to speak, developed so extensively by the Supreme Court in the 1930's, can no longer be confidently assumed. Hollow rights have been advanced on behalf of consumers to justify governmental controls on press content. This article shows the origins of this wrongheaded theory of the first amendment in the intellectual ferment of the years immediately after World War II. It examines the evolution of Court thinking in three areas of press law: libel, broadcast regulation, and commercial speech.

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