B. The Press As Watchdog

Many constitutional scholars consider the point of carving out constitutional protection for press freedom to be to guarantee that the press is able to effectively question and challenge government policies and actions. The proper role of the press in relation to government, according to this view, is as watchdog: journalists serve an important function in maintaining both the honesty and effectiveness of government. Roy S. Gutterman, Note, Chilled Bananas: Why Newsgathering Demands More First Amendment Protection, 50 Syracuse L. Rev. 197 (2000). If government is left to its own devices, it will naturally tend toward secrecy and closed decision-making. Under this model of interaction, only a vigilant press can ferret out corruption and hold the feet of the government to the fire.

The classic expression of support for this role for the press in the national security context occurred in New York Times v. United States, a case involving the power of the government to prevent the publication of a classified study about the decision-making process that led the United States to enter the Vietnam War. New York Times Co. v. U.S., 403 U.S. 713, 717 (1971) (Black, J., concurring). Justice Black, in a concurring opinion supported by Justice Douglas, was highly critical of the restraints the U.S. government sought on publication in that case. He wrote that the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. Id.

This theory of the role of the press in a democratic society requires protection via the First Amendment as a prerequisite. The government must be unable to restrict or otherwise interfere with the ability of the press to select and publish its stories. While it might be possible to square government restrictions with this view in some situations, it is plain that proponents of the watchdog model are highly suspicious of any government interference whatsoever. Justice Douglas view of the First Amendment is in accord with this need for an unrestricted press: he interpreted no law to mean absolutely no interference with press freedoms by the government. Nichelle Frelix, Note, Turner Broadcast v. FCC: Modern Communications Development and the Evolving First Amendment, 16 WHITTIER L. REV. 685, 710 (1995). Were the government able to broadly (or even narrowly, according to some advocates) regulate the press, it would be able to largely choke off its ability to function as a check against government corruption.

While proponents view the press as an able watchdog capable of preventing significant abuses of authority, there have been a number of criticisms leveled against this model. First, critics have charged that a watchdog press often sacrifices accuracy in its quest for the story. Thus, advocacy often conflicts with the goal of accuracy because [w]hen the public is bombarded with false assertions and inaccurate facts from a press that operates largely unchecked, the results directly contradict one of the historical purposes underlying the First Amendment: to foster an informed electorate. Philip L. Judy, Comment, The First Amendment Watchdog Has a Flea Problem, 26 CAP. U.L. REV. 541, 541 (1997). According to this criticism, members of the press, encouraged to one-up each other by identifying government corruption, end up sacrificing truthfulness to advance their careers. Recent scandals at prominent press entities only seem to confirm this fear. See Timothy W. Maier, The Crumbling of The Fourth Estate, INSIGHT ON THE NEWS, May 24, 2004, at 30 (describing recent scandals at USAToday involving fabrications by prominent journalist Jack Kelley); Charles Lane, Charmed, Im Sure: Why Newsrooms So Often Fail to Detect the Deceivers in Their Midst, WASHINGTON POST, May 2, 2004, at B03 (discussing a variety of recent scandals in press accuracy at both the New York Times and USAToday). However, a lack of truthfulness by some members of the media does not necessarily spell the end of the watchdog model. As Justice Brennan has pointed out, while the press has, on occasion, grossly abused the freedom it is given by the Constitution from the earliest days of our history, this free society, dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 51 (1971). While some journalists who stray from strictly factual reporting will inevitably twist or distort some facts, the necessity of having someone to play the role of watcher to the governments role as watchman justifies the model in his view despite occasional abuses. Second, some critics of the press as watchdog model have alleged that shifting power relationships have rendered it an outdated model. Because the power of corporations and other non-governmental entities has grown to challenge or exceed that of governments, the press should shift its focus from a watchdog against government to a watchdog against these new entities. See William E. Berry et al., Last Rights: Revisiting Four Theories of the Press 159-60 (John C. Nerone ed., 1995). This criticism is at best, however, an addition to the watchdog model and not a repudiation of it (at least in the case of embedded journalism). The need for the press to hold corporations accountable does not end the need for criticism and commentary about actions of the government. See Karen M. Marken, An "Unholy Alliance": The Law of Media Ride-Alongs, 12 COMMLAW CONSPECTUS 33, 35 (2004) (analyzing this objection in the context of press ride-alongs with police officers). Additionally, this objection seems too narrow in light of the potential for corporate and government power to intermingle. Lobbying and other devices can be used by corporations to influence the government, and even if corporations are important actors, they can only impose speech restrictions indirectly through the government. At any rate, the United States government still appears to have sufficient powers that it should not be ignored by the press in its role as watchdog.