Freedom of the Press

Freedom of the press is the liberty to publish news, argument, and criticism without licence or prior restraint from the state. In the English-speaking world it was not proclaimed in a single document but won piecemeal: Parliament let press licensing lapse in 1695, colonial juries refused to convict printers, and the American First Amendment of 1791 fixed the inheritance in constitutional text.¹

Conservatives defend press freedom as a possession of every citizen who publishes — the pamphleteer of 1720 and the substack writer of today alike — rather than a corporate privilege belonging to a professional class of journalists. That distinction drives most contemporary conservative argument about the press.

Key Takeaways

• English press licensing ended in 1695 when Parliament declined to renew the Licensing Act, not by grand declaration.
• Blackstone defined press liberty as the absence of previous restraint upon publication, a formulation American courts adopted.²
• Conservatives treat press freedom as an individual right of publication, not a special immunity for media institutions.
• Current conservative disputes centre on state-subsidised journalism and the reach of the New York Times v. Sullivan libel standard.

History And Context

The fight began with licensing. John Milton’s Areopagitica (1644) attacked Parliament’s requirement that books be approved before printing, arguing that truth needed no licenser.¹ The Licensing Act expired in 1695 and the trade in print exploded. William Blackstone, writing in 1769, summarised the settled common-law position: the press is free when no prior restraint exists, though publishers remain answerable for libels after the fact.² In New York in 1735 a jury acquitted the printer John Peter Zenger of seditious libel against Governor William Cosby, establishing in practice that truth told against power deserved protection.

The United States constitutionalised the inheritance in 1791. Two centuries of case law followed: Near v. Minnesota (1931) struck down prior restraints, New York Times v. Sullivan (1964) required public officials to prove actual malice in libel suits, and the Pentagon Papers ruling of 1971 blocked the Nixon administration’s attempt to suppress publication.³ Canada entrenched freedom of the press in section 2(b) of the Charter of Rights and Freedoms in 1982, layered over an older common-law tradition.

The Conservative Position

Conservatives ground press freedom in property, contract, and the common law rather than in the special status of journalists. Anyone with a press — or a phone — holds the right; no guild card is required. From this follow three characteristic positions.

First, opposition to state involvement in the press. Conservatives opposed Canada’s federal media support programme, announced in the 2018 fall economic statement at roughly CAD 595 million over five years, on the ground that a press paid by the government it covers ceases to be a watchdog. The same logic applies to public broadcasters: a state-funded newsroom competing against private ones distorts both the market and the incentive to hold government to account.

Second, scepticism of institutional privilege. Claims that the constitutional press clause confers special rights — enhanced access, shield protections unavailable to ordinary citizens — invert the tradition, which protected the activity of publishing, not a profession.

Third, a willingness to revisit Sullivan. Justice Clarence Thomas in McKee v. Cosby (2019) and Justice Neil Gorsuch in Berisha v. Lawson (2021) each questioned whether the actual-malice rule, built for 1960s civil-rights-era officialdom, now functions as a licence to defame, given that the doctrine has expanded far beyond public officials.⁴ Conservatives who take this view argue that reputation is a form of property the common law once protected and modern doctrine has abandoned.

Differing Positions

Press institutionalists argue the opposite of the conservative reading: that the First Amendment’s press clause protects the press as an institution — the fourth estate — and justifies shield laws, access rights, and public subsidy. On this account, investigative journalism is a public good the market undersupplies; the collapse of local newspapers since 2005 left communities without coverage of councils and courts, and public funding is the remedy Australia, Canada, and several European states have adopted. Defenders of Sullivan answer Thomas and Gorsuch by pointing out that the rule protects unpopular speakers of every political stripe, and that weakening it would hand wealthy plaintiffs a weapon against small publishers above all. Conservatives reply that subsidy and privilege concentrate power in incumbent institutions, while the tradition they inherited placed its trust in the unlicensed citizen.

References

1. John Milton, Areopagitica (London, 1644).
2. William Blackstone, Commentaries on the Laws of England, Book IV (Clarendon Press, 1769).
3. Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (Random House, 1991).
4. McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari); Berisha v. Lawson, 141 S. Ct. 2424 (2021) (Gorsuch, J., dissenting from denial of certiorari).