Globalizing the First Amendment in the 21st Century

In his new book, “Uninhibited, Robust, and Wide-Open: A Free Press for a New Century” (Oxford University Press, January 2009), Columbia University President Lee Bollinger examines American jurisprudence on freedom of the press — which, despite the First Amendment’s 18th century origins, developed largely over the past hundred years — and makes the case for extending its protections on a global scale in the 21st century. Bollinger takes his title — and his rallying cry — from Justice William Brennan’s 1964 opinion in New York Times v. Sullivan, the Supreme Court decision establishing that “criticism of the government and government officials was at the very heart of the speech protected by the First Amendment.” His book arrives at a time when that notion is being very publicly challenged in China.

In order to launch a Chinese version of its search engine back in 2006, Google was forced to comply with Chinese censorship laws. The company responded to criticism in the U.S. with the argument that Chinese citizens would be better served in the long run by having Google in some form than not at all. Following the discovery that the e-mail accounts of several human rights activists in China had been hacked two weeks ago, Google announced it would abandon its cooperation with Chinese government censors and threatened to pull out of the country altogether over human-rights and free-speech constraints.

The battle highlights the central question Bollinger tries to answer in his book: “What happens when Americans’ interest in knowing what is occurring in the global arena collides with the rest of the world, which does not accept the U.S. conception of press freedom?”

What do you make of Google’s current imbroglio with the Chinese government over censorship?

This is a very high-profile example of something that’s much more extensive in the world and really needs to be addressed in a thoughtful, comprehensive, very pragmatic way. If you look back at the 20th century, we [in the United States] went from a system with very local controls to a national system of very extensive protections for the press, and a very high quality of journalism. That took several decades, but we now have the most protected free speech in the world.

Now we’re trying to do that on a global scale. We have the benefit of technologies — satellites and the Internet — that make it possible to have a true global public forum, but we have multiple restrictions, and we do not have the full capacity to develop world-class journalism.

So what’s happening in China with Google right now is not new, China has had many restrictions. The BBC World Service has a number of stations that they broadcast into China, and China selectively blocks them in the country. If you’re a reporter in China writing for a Western newspaper, you must be accompanied by a Chinese person representing the government, so there are very, very tight controls built upon an idea about how to organize society that is fundamentally different from our own. China is not alone in this, but if we’re going to have an economic relationship with China with tremendous amounts of exports, it’s no longer a matter of human rights, it’s a very practical problem: We cannot have a relationship in which we are so dependent economically and not have a greater free-flow of information.

But how do you push the American concept of a free press beyond our own borders?

First of all, the problem of creating a vigorous free press is both dealing with censorship and access, and building a capacity for coverage. We only have, as my interview research found, three dozen reporters from the U.S. based in China, reporting on China. That’s completely insufficient for the magnitude of the problem. We want China to succeed, we want to have an excellent relationship with China. But we need to know more about what is happening there.

What can be done? Let me take the First Amendment community. I taught freedom of speech and the First Amendment every year, including while being president of Michigan and Columbia, and no case book that I know of takes the question of building a free press from a national scale to a global scale. What are the issues? What are the public policies? What are the tools? Our attentions have been nationally focused, not globally focused.

What are the tools? International law is one. The Universal Declaration of Human Rights is now part of international law cited by governments all the time. It has a quite wonderful statement on freedom of the press concerning the right of access, regardless of frontiers, which signifies this should be beyond the control of a single government.

If you think of other tools you can use, we have a set of principles in international trade, policy and law, and also in bilateral investment treaties. Once you start looking at those, you find there are very interesting ways in which those could be deployed to open up markets to greater media presence, combat censorship and make it part of a global economic system.

A recent article in the Columbia Journalism Review describes how the editor of The Guardian was able to fight back against judicial censorship imposed in the controversial Trafigura case by using Twitter to engage the public in a national debate on the issue. How do you think new communications technologies are helping to change the law in countries like the United Kingdom?

I’m quite dazzled by new social networking technologies; I think they’re very impressive and important. I do think, however, that they do not replace and institutional press, just like universities have a role to play that online courses do not. I think they’re great, but I don’t think hundreds of thousands of bloggers will add up to major media.

Britain is a very interesting example of an open society with very different choices with respect to freedom of the press. In many respects, we in the U.S. have moved toward greater freedom — concerning state secrets, libel, civil unrest — while they have taken a much narrower perspective. We have Pentagon Papers, Sullivan, Nebraska Press. Britain has taken a narrower approach.

My view is that we very much need to engage these issues on a more global scale. What that really means is greater and greater economic integration. Just in the past 10 to 20 years, there’s been a tremendous shift in the degree of interdependency in the world, and the recession is an illustration of that. Given that we’re now much more interdependent, we need the institutions that can help sustain that, and a free press is absolutely crucial to that goal. We need to engage countries in this debate. Countries that have different views argue for them, and we should find mechanisms for resolving these differences.

What can be done in countries like Russia, where journalists — and lawyers — have repeatedly faced physical attacks, and in, some cases, murder?

It is deeply troubling to see violence against the press, whether on the border of Mexico, in Russia, Iran or elsewhere, but I think it is significant to have a shift in perspective that says this is no longer just a matter of people in other countries who should have the same rights we have here. We are dependent upon having a free press. Our interests are threatened when the press is defeated and terrorized and censored in other parts of the world. It’s not that human rights are no longer the organizing principle; it’s now also a very pragmatic building of free flows of information around the world that is critical to support what we have done on the financial side.

In the book you make the argument that “the current fragility of the financial position of the press ought to be a matter of serious First Amendment concern.” What’s the best way to address the issue?

I’m very disposed to greater public funding of the press. I think we already have extensive public funding of information: the National Institutes of Health, the National Science Foundation, work in social sciences and public funding of the press now through the Corporation for Public Broadcasting. This is not new to this country. The question is: Where do we take it from here? Can we get the kind of journalism we need as a society without increased public funding? Probably not.

I think we need to increase it not only in the direction of trying to support local news gathering, but what I’m talking about is the global void of news gathering. We see the financial perils that have confronted major media in the U.S., and they have responded in the ways you would expect them to in a for-profit business model: that is to cut back on foreign bureaus, and that’s a real tragedy at a time when our need for global information is growing.

Interview has been edited for style and length.