WaPo 1979: Fire, Illness, Fraud and Free Speech

From The Washington Post Editorial Board on Tuesday, October 2, 1979

For this week’s Historically Speaking feature, we venture back to the October 2, 1979 issue of The Washington Post. Here the Editorial Board writes about how numerous threats to the First Amendment prompted publishers and broadcasters to obtain “free speech” insurance:

Fire, Illness, Fraud and Free Speech

SOMETHING IS CRAZY WHEN people start having First Amendment insurance. But that is what is happening. A Bermuda-based company has developed a program to permit the owners of most American newspapers, magazines, book-publishing companies and broadcasting stations to buy insurance that will cover the costs of defending free speech and a free press in court.

The arrangement, worked out by the American Newspaper Publishers Association, appears to be both businesslike and wise. First Amendment cases arise so frequently these days and the legal fees involved are so high that only the most financially sound companies and publishers can afford to get involved. It may well be prudent management for companies or individuals to insure themselves against risks over which they have no control.

What is striking about this is that the good old U.S.A. survived for a couple of centuries without a need for insuring the First Amendment. Injunctions against publication were not issued. Trials were not held in secret. Reporters were rarely called as witnesses. Governments did not have to be sued before they made available information about their routine activities.

All that has changed over the last decade, and the costs of resisting the trend have become almost prohibitive. Some small newspapers, magazines and broadcasting stations have quietly surrendered their constitutional rights because they could not pay the lawyers' fees. Others have defended those rights only after passing the hat among wealthier groups or persuading some public-spirited lawyer to handle the case for little or no fee.

Part of this reflects a general situation: taking any and every matter to court has become so time-consuming and expensive that only the rich (who can afford the legal fees and printing costs) and the poor (for whom the government pays the bill) can avoid balancing what they may win against what either a win or a loss will cost.

The principal culprit, however, is the series of court decisions and government actions that have weakened the First Amendment. How far the thing has gone can be measured by the items with which the exercise of press and speech rights are now grouped. The prudent man insures against losses due to acts of God (fire, illness, death) or acts of other persons (theft, fraud, accident). Now it has become necessary for those who exercise a First Amendment right to insure themselves against acts of their own government.