Alex Barbour

Part 2 Evidence 2
URL: http://teachinghistory.org/history-content/ask-a-historian/23821

Question
Why is it that, while the media is referred to many times as the 4th branch of government, it is not
explicitly stated as such? Is this something that would be or has been up for consideration? What
arguments would favor or oppose this amendment to the body of our Constitution?

Answer
Calling the media the "4th branch of government" is a rhetorical device, not a serious statement of
fact. The point is to emphasize that the press is not a mere passive reporter of the facts, but a
powerful actor in the political realm.
Calling it "the 4th branch" not only emphasizes the amount of power it wields, but is often meant to
suggest that that power is not under the control of the people in the same way that their elected
representatives are. The implication is that it acts as a shadow government, unaccountable to the
people, but is instead beholden to special interests of one sort or another, or that the press's supposed
separation from the government is largely an illusion. The corollary is that the press sometimes
menaces rather than protects, or controls rather than serves, the public.

The Phrase "4th Branch of Government"

The "4th branch of government" is a phrase that appears to have first surfaced among critics of FDR's
New Deal in the 1930s. It referred not to the press, but to the collection of new Federal regulatory
agencies with top officials appointed by the Executive Branch. Their function was quasi-judicial, and
they were not directly accountable to the people.
Identifying the "4th branch of government" as the press came a decade or so later. Hartford
Courant editor Herbert Brucker, in his 1949 book, Freedom of Information, devoted some ink to it. He
explicitly equated "the 4th Estate" (another, older phrase often applied to the press, which has its own
linguistic history derived from British and French politics) with "the 4th branch of government."
Journalist Douglass Cater entitled his 1959 book on the practical relationship between the government
and the press, The Fourth Branch of Government. Both authors were convinced that, insofar as the
press did act as a true political player (rather than an unbiased observer of politics), it corrupted itself
and went astray from its primary responsibilityto convey important information and to act as a
nonpartisan watchdog for the public against all trespassers on their rights.
Lately, some political writers have used the phrase, "the 4th branch of government," to mean the
voters' power to form law directly through petition or referendum, as in California.

Freedom of the Press

The 1st Amendment of the Constitution says, Congress shall make no law ... abridging the freedom ...
of the press. The Constitution establishes a government with three branches, but it does not establish
a press or a media. What it does do is prohibit the government from trying to control what people say,
either in the press (and by extension in other forms of media) or outside the press.
The core principle is that in the U.S., as distinct from many other countries, the media (and the people
in general) are not established or granted rights or status at the discretion or pleasure of the

government. Rather, the government's power is entirely derived from the "just consent of the
governed." The point of the 1st Amendment is to make sure that the government does not overreach
itself by trying to limit the basic rights of the people, such as their right to speak freely, including their
right to criticize the government. The government does not grant that right. It already exists, no
matter what the government might say or do.
The 1st Amendment states the consequence of that fact: Congress cannot limit freedom of speech.
The Constitution recognizes the press's freedom as fundamental and prevents the government from
infringing on it.
Another way of demonstrating this: The government, barring a few exceptional situations, has not put
itself in the business of funding the press, much less actually running a news organization (rather than
a public information office). One exception is the grant money that partially funds the Corporation for
Public Broadcasting and National Public Radio (and fully funds international broadcasting entities such
as Radio Free Europe, Radio Liberty, and Radio Free Asia).
Another exception is Voice of America, the government agency that broadcasts radio and television
abroad. VOA is prohibited by the Smith-Mundt Act, however, from disseminating its programming
directly to the American people. This was partly out of fear that an administration would find it a useful
tool for selling itself to its own constituents and thereby unfairly consolidating its own power against its
political opposition.

Potential Upside of Making the Press a Separate Branch of the Government

Incorporating the press into the government would make the media more accountable in some sense
for what it says and does, and would make it less dependent on large commercial interests for success.
It would likely make the media more careful and guarded about what it said. No matter what your
political perspective, it is not difficult to think of instances where that would have been a good thing.
Politicians and journalists have recently talked about giving government subsidies to news
organizations suffering from a dwindling subscriber base and shrinking audience or advertising
revenues. This idea they justify under the notion that the press or the media is a kind of public service
or utility and is valuable to the general welfare of the country. This would be an extension of the idea of
the electromagnetic broadcast spectrum as a public resource that is allocated and protected by the
Federal Communications Commission.

Potential Downside of Making the Press a Separate Branch of Government

Trying to bring the press under the umbrella of the government, even as a separate "branch," would
join the interests of the press with the interests of the government that funded it, making it less likely
to criticize the government. The press, then, as a government entity, would be perceived (and truly
function) as a propaganda ministry, a partisan political tool.
This would jeopardize the press's credibility as objective, making it less valuable to the public. It would
also introduce a largely unpredictable period of experimentation, resetting the most fundamental
structure of the government by adding a 4th branch. It would also re-frame the relationship of the
government to the people, from one in which the government is granted its limited power by the
people (who always maintain their rights), to one in which the government is the granter and
administrator of rights, such as, here, freedom of speech.
There are many countries in the world where this is the model. Many of them have media that are
largely or even exclusively government-run (or at least government-funded). Despite the occasional
desire of politicians or government bureaucracies to control a media that annoys or criticizes, the
Constitutional guarantees of freedom of speech and of the press have largely prevented such action
here.

Exceptions to the Freedom of the Press

By law, the press is limited in its content when such content would be libelous, obscene, seditious
(leading to "imminent lawless action"), or would threaten national security or the public safety.
Restrictions on "hate speech" also limit the freedom of the media, as do copyright laws. It has been
along the border of these limitations that skirmishes between the press and the government have
been fought for nearly the entire history of the U.S.
Such skirmishes began in earnest with the passage of the Sedition Act of 1798, which, for a time, made
it an offense "To write, print, utter or publish, or cause it to be done, or assist in it, any false,
scandalous, and malicious writing against the government of the United States, or either House of
Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to
excite against either the hatred of the people of the United States, or to stir up sedition, or to excite
unlawful combinations against the government, or to resist it, or to aid or encourage hostile designs of
foreign nations."
Nevertheless, it is a sign of how little support the Constitution gave to the government to define for
itself the content of what the press could publish that 1st Amendment cases involving questions of the
freedom of the press were decided in what historian Lucas Powe calls a "haphazard" fashion until the
1964 Supreme Court decision of The New York Times v. Sullivan, which clarified what constituted libel
and what did not.