Journalism,Public,Policy: An Institutional View of the Press’s Legal Discourse at the End of the 19th Century

Journalism History, Institutionalism, and Law

Some of the most compelling recent scholarship in journalism history has illuminated a need for greater conceptual and theoretical clarity about how journalistic roles are articulated, contested, and enacted. Scholars have proposed pathways for understanding these processes within historical and institutional contexts, which provide insight into how ideals like objectivity, the gatekeeping role, or the watchdog role have emerged and evolved within the journalistic field and in relation to other social fields around the turn of the 20th century (Ryfe, 2017; Schudson, 2001; Vos, 2017). However, while the law plays a crucial role in this process of role-defining and delimiting, the normative realm of First Amendment theory—concepts like the marketplace of ideas or the checking value of a watchdog press—has done relatively little to explain the precise role journalistic institutions play in key processes like litigation and policy making (see Carter, 2017; Pasadeos, Bunker, & Kim, 2006).

Institutionalism can help us contextualize and analyze legal discourse as an important means by which institutional actors struggle for authority and establish and interpret norms and practices. Because the institutionalist perspective is concerned with examining journalists’ practices, routines, and rules in relation to external pressures, it is a useful lens through which to view the social and institutional construction of the identities and values of journalism within a broader context (Ryfe, 2006). Institutional actors establish and legitimize these identities and values, defending them to each other and in the public sphere, through discourse. Thus, the analysis of discourse is key to explaining the “link between journalists’ roles and journalism’s identity” within historical, social, and institutional contexts (Hanitzsch & Vos, 2017, p. 118; see also Vos & Finneman, 2017). The discussion of legal issues by journalists, their advocates, and their detractors should be understood as a key site of the social negotiation of journalistic roles and institutions.

Proponents of the institutionalist perspective argue that although journalistic institutions are generally stable and path dependent, changes tend to arise at “critical junctures”—disruptive moments of uncertainty and redefinition (Ryfe, 2006, pp. 138, 141-142). Studies of the discursive constitution of journalistic roles and norms also argue that moments of unsettledness and uncertainty are pivotal (Schudson, 2001; Vos, 2017). The term “institutional maintenance” was used by Bartholomew Sparrow (2006) to describe the particular ways in which journalists seek “to further entrench their presence in and impact on their environment” (pp. 152-153). Sparrow has pointed to the press’s relationships to lawmaking and judicial processes and responses to new technology as areas which could highlight change and stasis in institutions over time in the context of broader external pressures. Although institutional maintenance is an ongoing process, it may be particularly important to observe at critical junctures.

Acute legal problems can constitute critical junctures because they can disrupt journalists’ stable and path dependent routines, practices, and roles. Insofar as journalists’ responses to legal problems may be intended to maintain their status and power amid these disruptions, they can be seen as more than just strategies to win individual legal battles—they are acts of institutional maintenance that define their social identities, values, and behaviors. Press discourse surrounding these legal issues should be understood as reflecting the press’s articulation of these identities, values, and behaviors, in ways that are intended to reify and reinforce the profession’s social status in the consciousness of its own members and the public. Moreover, institutionalism’s assertion that relationships between the internal and the external are crucial to social role–definition is consistent with a core aim of legal history: to understand the social contingency of law by looking both inside and outside of traditional or formal legal forums to consider how conflicting legal ideas are articulated and become dominant (see Blumenthal, 2012; Gordon, 1984).

The Press and the Law at the Turn of the 20th Century

The late 1800s and early 1900s was a consequential period for the American news media. Journalists pushed the boundaries of propriety in gathering and publishing information while the press became a more profitable, powerful, and professionalized institution. The period saw many newspapers—particularly in fast-expanding cities—become business behemoths (Baldasty, 1992; Nerone & Barnhurst, 2003), driven by competition for larger, more diverse audiences (Dicken-Garcia, 1989; Guarneri, 2017; Huntzicker, 1999) and accelerated by technology that made gathering, publishing, and distributing information faster and more efficient (Blondheim, 1994; Kielbowicz, 2015; Schwarzlose, 1990). Hallmarks of professionalization in the progressive age also emerged, including trade organizations, trade journals, and journalism schools (Banning, 1999; Emery, 1950; Herbert, 1896; Hudson, 1873; Vos, 2011; Winfield, 2008). Journalists positioned the newly powerful industry’s core principles around various competing visions of public service and truth-telling (Campbell, 2006; Forde & Foss, 2012; Kaplan, 2002; Mindich, 1998; Schudson, 1981, 2001).

Amid this disruptive moment of growth, consolidation, and redefinition, journalists responded to emerging and evolving challenges in the law of libel and privilege. These questions were mostly the domain of state and lower federal courts, where they were usually considered without explicit reference to the First Amendment, as the U.S. Supreme Court had yet to meaningfully interpret the Constitution’s protections for freedom of speech and press (Rabban, 1997). Thus, as the press underwent a commercial, industrial, and professional revolution, the industry’s legal footing was uncertain at best (see D. C. Smith, 2014). Scholars have closely examined the legal threats the press faced during these “forgotten years” of speech and press jurisprudence (Rabban, 1997) in an effort to understand how principles of press freedom were developed. For example, Timothy Gleason (1990, 1993) argued that the roots of the “watchdog concept” of press freedom—the idea that the press’s role is to serve the public as a lookout for government and corporate misbehavior—arose in libel cases following the Civil War. Other legal historians have argued that libel cases of the late 1800s and early 1900s evince a jurisprudence that, free speech protections notwithstanding, sought to protect the social order and guard individuals—especially political and social elites—from unwanted scrutiny (Barbas, 2015; Friedman, 2007; Rosenberg, 1986). Meanwhile, several studies of journalists’ refusals to name their confidential sources have examined the extent to which that act of defiance and professional honor became entrenched and unified through the 19th century (see File, 2010; Gregg, 1984; Kaminski, 1976; Koningisor, 2018; Spellman, 2004). Dean C. Smith (2013, 2014) has argued that the nation’s first journalists’ “shield law” in Maryland, passed amid a furor surrounding the Shriver and Edwards case, was a milestone “non-judicial precedent” in which non-judicial actors—the press and its advocates—helped begin to build a solid legal rationale to support the privilege. Although this legal scholarship has been extremely helpful in illuminating important ways in which American consciousness surrounding freedom of speech and press developed outside of the U.S. Supreme Court, it has also generally been focused on single legal issues, single sources of legal discourse, or both, which can limit descriptive strength and connection to the field of journalism and mass communication history more broadly.

The aim here is to focus on discourse concerning two distinct legal problems in a short but critical period of time, toward making a meaningful intervention in the scholarly conversation about journalism history and law. Chiefly, the study uses institutionalism as an analytical framework to demonstrate how the concept of public policy was key to the press’s articulation of its social role in relation to the public in the midst of a key moment of disruption in the field of journalism. In response to two legal problems, the press made the case that their social role as professional protectors of the public interest required special legal treatment—a means of institutional maintenance that has become a part of the conventional wisdom surrounding freedom of the press. More broadly, this study highlights the fact that although legal discourse has played a relatively small role in the development of the institutionalist framework of analysis in journalism history, it is an especially important site of institutional role-definition by the press, because it has a direct bearing on the relationship between journalism and the state.

To analyze the social negotiation of journalistic institutions as they relate to legal issues at the critical juncture of the end of the 19th century, the study examined discourse related to journalist’s privilege and libel that appeared from 1894 to 1897 in numerous newspapers and one trade journal. The 74 articles—53 from newspapers searched using digital archive databases and 21 gathered manually from The Fourth Estate trade journal—were selected based on their relevance to the issues of libel and journalist’s privilege, journalism, and public policy, and their inclusion of editorial opinion regarding those issues. The 4-year period was selected because it was particularly active in the two key legal issues that are the focus here: It included the litigation of Shriver and Edwards’s privilege case (see D. C. Smith, 2014) and the height of a late-19th century libel law reform movement which saw several states pass press-friendly retraction statutes (see File, 2017).

Privilege Discourse: The Public Policy of Confidential Sources

Confidential sources played a prominent role in late 19th-century journalism (see, for example, “News-Gathering in Washington,” 1886; Perley Poore, 1874; Watrous, 1892). When these relationships led to legal confrontations, journalists and their advocates connected the proposition that they should not be required to reveal their sources to a social role of service to the public. In addition to providing journalists with a legal rationale to refuse to cooperate with investigations that threatened an important professional practice, these arguments were intended to reinforce an altruistic professional identity and bolster the social standing of journalism, doing the institutional maintenance work of aligning journalists with the public good, in opposition to overzealous or corrupt government officials.

In his treatise Privileged Communications as a Branch of Legal Evidence, attorney and legal scholar John Hageman (1889) may have provided the clearest and most explicit connection between the social role of the modern newspaper and a public policy argument for “journalistic privileges.” Hageman observed that journalism’s “very important influence upon the administration of justice and civil government” had created “new exigencies” which could lead to the enactment of a statutory privilege similar to the common law privilege already recognized for lawyers and their clients or government prosecutors and cooperating witnesses (p. 228). Hageman analogized reporters’ confidential sources to witnesses who provide information to government prosecutors and argued that because newspapers are

a species of tribunal, of great benefit and assistance in the public administration of justice . . . it is urged that the editor of a newspaper should be privileged from divulging the name, at least, of the witness who confidentially informed him of the public offence charged. (p. 227)

However, other legal writers rejected Hageman’s view of the public policy value of extending a privilege to journalists. To do so would be “exceedingly inexpedient,” as it could be used “to hide the machinations of some secret enemy” from a person who had been defamed, argued the University Law Review (Chapin, 1897, p. 302). The New York Law Journal (1897) argued that “the true interests of public policy would not be promoted by importing the feature of confidential privilege into the legal status of journalists” because “there is no theoretical analogy between the position of a lawyer, or a doctor, or a clergyman and that of a newspaper man,” and “the proposed change in the law would afford still more available opportunities than now exists for misleading the public through the newspapers” (“Confidential Communications,” 1897, p. 99). ²

Such was the professional and legal landscape for Washington correspondents Shriver and Edwards when their relatively routine reporting launched 3 years of litigation with the threat of fines and jail time. Edwards, in a March 14, 1894, report for the Philadelphia Press, and Shriver, in a May 10, 1894, report for New York Mail and Express, wrote about backroom negotiations and Democrats’ “honorable obligations” to an association of sugar refiners that had supported President Grover Cleveland’s campaign (“Report of the Special Committee,” 1894, pp. 5450-5452). The refiners, known as the “Sugar Trust,” wanted the pending Wilson–Gorman Tariff Act gutted or killed. After a significantly weakened version of the bill passed, allegations of bribery arose, and the Senate launched an investigation. On May 24, 1894, the Special Committee to Investigate Attempts at Bribery, Etc called its first witnesses: Shriver, Edwards, and Harry W. Walker, another reporter who was alleged to have relevant information that he never reported (“Report of the Special Committee,” 1894). The journalists retained lawyers and refused to name their sources. Walker was dismissed on May 28, after his testimony was deemed immaterial. On May 29, the full Senate requested that Vice President Adlai Stevenson certify the journalists to the district attorney to charge them with contempt of Congress, and on July 3, 1894, a District of Columbia grand jury returned indictments against Shriver and Edwards (U.S. Senate Report No. 606, 1894, pp. iii, vi-ix).

In his briefs filed in support of the reporters’ demurrers, the reporters’ attorney, A. J. Dittenhoefer, argued that the committee did not have proper jurisdiction to compel their testimony and that the questions posed to them were not relevant or specific enough to be useful to the committee. He also asserted the traditional rationale for the privilege: that disclosing the reporters’ sources would “degrade” them professionally (H. H. Smith, 1894, pp. 829, 841-848). But in addition to the professionalism argument, Dittenhoefer argued that the journalists should have the right to decline to identify their sources “as a matter of public policy,” explaining that if reporters were continually forced to reveal their sources, the sources would eventually dry up, “for there are few persons who would be willing to incur the odium and legal liability that might result from their disclosure as informers” (H. H. Smith, 1894, pp. 848-849). Dittenhoefer cited the Hageman treatise for the proposition that the privilege was overdue, given that newspapers had become “a mighty influence in all circles of modern civilizations” and thus “a new factor to be provided for in administering law in our courts of justice in the defense of liberty and human rights.” Dittenhoefer observed that new legal doctrines had been developed to recognize modern innovations like the telegraph, telephone, and the steam engine, and therefore “courts should not hesitate . . . to include the modern newspaper within the protection of privileged communications” (H. H. Smith, 1894, pp. 848-849).

In their editorial coverage of the case in May and June of 1894, the Fourth Estate and newspapers combined professional values with the public service role of the press. As the reporters asserted their right to refuse to name their sources, the Fourth Estate announced that the case would “be watched with great interest, not by the press alone, but by the public, to whom the outcome is of far greater importance than to any particular newspaper involved” (“Newspaper Ethics,” 1894, p. 4). The Fourth Estate also quoted Philadelphia Press editorials that identified the public as a stakeholder in the case: “Public opinion protects [a journalist] in preserving [his] confidence because it is necessary to society that his work go on,” the Press argued, “and in due time law and precedent . . . will also protect him” (“The Issue,” 1894, p. 4). The Press also argued the case

goes to the very heart of honor, honesty, independence and public fidelity of journalism. Following the indefensible, inexcusable rule of the Senate Committee that no journal or journalist must publish vital public information known to be true without being compelled to disclose its source . . . would muzzle journalism, shield wrong-doers and leave the public without defence [sic]. (“The Rights of Journalists,” 1894, p. 3)

The New York Times, ridiculing an Oregon Senator who spoke in favor of indicting the reporters, argued that the efforts were intended “to so terrify” the press “that there shall be no more criticism of the Senate” (“Merciless Senator Dolph,” 1894, p. 4). The Fourth Estate argued that professionalism compelled the reporters not only to protect their sources’ identities but also “to wantonly betray the source” would destroy the “usefulness of the press” because “the public good is served by the publicity given the facts, and the press, having fulfilled its obligation to the public, is bound to protect its informant” (“Newspaper Ethics,” 1894, p. 4). Thus, much of the discourse surrounding the case aimed to articulate a clear professional role for the press that was rooted in public service, while bolstering the press’s institutional standing vis-à-vis the government’s power to compel testimony and divulge secrets.

Not all newspapers reporting on Shriver and Edwards’s legal battle agreed with the version of professionalism articulated in support of the journalists’ privilege, however. The Philadelphia Ledger, in an editorial the Fourth Estate republished in an apparent spirit of balance, stated that it did not agree with “the assumption that the contributor to any public journal stands upon the same ground as that occupied by the clergy-man, physician or lawyer to whom confidential communications are made.” Although priests, doctors, and lawyers receive secrets with the intention of keeping them, the Ledger argued, journalists receive secrets with the intention of publishing them. The Ledger also said that recognizing journalists’ privilege could actually have the contradictory effect of protecting “scandal-mongers”—individuals who would rely on the privilege to anonymously attack political rivals or lie (“The Other Side,” 1894, p. 4). This perspective—in addition to echoing common contemporary arguments against journalists’ privilege—demonstrates a lack of unanimity in the discourse that is consistent with the process of the “formalization” of professional norms (Schudson, 2001, p. 152).

On January 19, 1895, months after the Special Committee’s investigation had concluded without the reporters’ testimony, the Supreme Court of the District of Columbia overruled the two journalists’ demurrers (H. H. Smith, 1894). ³ Shriver and Edwards appealed, and after a years-long delay and then a 3-day trial, Judge A. C. Bradley of the Supreme Court of the District of Columbia directed the jury to return a verdict of not guilty on June 18, 1897, holding that the reporters were not properly subpoenaed and that the questions posed to them were beyond the scope of the committee’s mandate. The journalists had won, but Bradley declined to recognize a privilege (United States v. John Shriver, 1897).

In covering the run-up to Shriver and Edwards’s trial and the ruling in May and June 1897, public policy played a central role in publishers’ arguments favoring the reporters’ claim of a privilege, warning readers about the stakes of a press that was punished for carrying out its professional duty. The Scranton, Pennsylvania Tribune noted that Shriver and Edwards drove public awareness of the Sugar Trust scandal, as well as the Congressional investigation. “So far as the public is concerned the personal fate of one or two writers for the press is not a matter of widespread moment,” the editorial continued, “but it is certainly a matter of vital concern to all the people of the United States that high public officials charged with vicious practices should not be permitted to evade a fair inquiry and then turn the machinery of the law upon those who, in good faith and from honest motive, had first told the truth against them” (“Professional Secrets Inviolable,” 1897, p. 4). The Morning Oregonian of Portland argued that any holding that required Shriver and Edwards to disclose their sources could establish a precedent that “would seriously compromise the usefulness of these publications in the collection and dissemination of news and the exposure of abuses against the government and society” (“The Reporter’s Trial,” 1897, p. 4).

Although the final ruling denied Shriver and Edwards’s claim to privilege, newspapers welcomed the verdict and reported it as an unqualified victory for the press. Dittenhoefer himself was quoted in the Fourth Estate with the optimistic assessment that Bradley’s decision was “a great victory for the newspaper profession” (“Shriver Is Free,” 1897, p. 1). From Judge Bradley’s ruling, which said that questions about the reporters’ sources for their Sugar Trust reporting were irrelevant to the committee’s work, Dittenhoefer extrapolated that “it could not be pertinent or relevant to any issue either in court or before a legislative committee to compel a newspaper man to give the name of his informant.” In other words, Dittenhoefer said, “the profession of journalism under this decision obtains virtually the privilege of refusing to disclose the name of an informant, but under a different legal principle, to wit, that such evidence is not pertinent or relevant” (“Shriver Is Free,” 1897, p. 1; see also “Shriver and Edwards Free,” 1897, p. 3). News organizations ran with Dittenhoefer’s stretch of the Bradley opinion, noting it in their stories (see “Both Acquitted Recalcitrant Witnesses Shriver and Edwards Not Guilty,” 1897; “Shriver and Edwards Free,” 1897) and even in headlines (“Newspaper Men Are Privileged,” 1897). While such optimistic rhetoric did not convince future judges to extend Bradley’s narrow ruling into a genuine or sweeping journalist’s privilege, the controversy contributed to the passage of the nation’s first shield law, in Maryland (D. C. Smith, 2014). Moreover, the journalistic discourse surrounding the case laid important groundwork in legal consciousness, doing the institutional maintenance of casting journalism as a profession dedicated to protecting the public interest.

Libel Discourse: The Public Policy of Protection

Libel suits were a much more widespread concern for news publishers in the 1890s than fights over confidential sources. The speed, scale, and sensationalism of the industrialized newspaper business raised the constant specter of costly or harmful errors for many publishers. Moreover, libel law of the 19th century was a strict liability doctrine; the only complete defense to a libel suit was truth, and to mitigate or minimize the money damages they owed to plaintiffs, defendants had to show that they bore no malice toward them. A defendant publisher’s claim that a libelous statement was an accident, or that the reliability or trustworthiness of its source led the publisher to assume its accuracy without verifying it, could sometimes limit damages, but never provided a full legal excuse (Newell, 1890; Townshend, 1890). Journalists, threatened by the ease with which plaintiffs and their lawyers could place them in legal and economic jeopardy, made a discursive connection between professionalism and the public interest that constituted institutional maintenance: advocating for libel law reform, claiming that burdensome lawsuits over relatively minor and unavoidable mistakes risked rendering the press unable to serve the public properly.

As with privilege, the rationale for protecting newspapers from costly libel suits had supporters and detractors in legal scholarship, with the public policy value of reform at the center of the split. Jurist and scholar Thomas Cooley (1868) argued that the realities of modern mass communication and the newspaper’s vital role in delivering “a complete summary of the events transpiring in the world, public or private, so far as those readers can reasonably be supposed to take an interest in them” (p. 452) demanded greater protection from libel suits.

Whatever view the law may take, the public sentiment does not brand the publisher of a newspaper as libeller [sic], conspirator, or villain, because the telegraph despatches [sic] transmitted to him from all parts of the world, without any knowledge on his part concerning them, are published in his paper, in reliance on the prudence, care, and honesty of those who have charge of the lines of communication, and whose interest it is to be vigilant and truthful. (Cooley, 1868, p. 454)

The president of the American Bar Association (1895), on the contrary, argued that retraction statutes were “of very doubtful expediency” (p. 194) while other legal commentators said they did not “promote the ends of justice” (“Untitled Note,” 1889, p. 86).

Newspaper publishers frequently tried, but usually failed, to convince judges and juries that libel cases stemming from “good faith mistakes” should be excused because of journalists’ duty to report on matters of public interest (Gleason, 1990, pp. 53-79). In legislatures, however, journalists found moderate success in creating breathing room in libel law. Helped by aggressive lobbying by press associations, 17 state legislatures passed retraction statutes between 1885 and 1915—laws that could limit a damage award when a publisher printed a retraction and demonstrated an absence of malice. The most active and successful period of lobbying was in the 1890s, and Illinois, Indiana, Massachusetts, Pennsylvania, and Wisconsin passed bills between 1894 and 1897 (File, 2017).

As newspapers and the trade press reported on libel reform efforts and the lawsuits that prompted them, public policy was both an explicit and implicit rationale for protecting the press. The Galveston Daily News reprinted two editorials from papers in San Antonio and Austin that expressed frustration in the Texas legislature for not passing a retraction statute in 1895, a bill which served “the best interests of the state” along with the interests of “truth, public justice and morality” (“The Lible Law,” 1895, p. 4). The editorials warned that without stronger protection for the press, newspapers could not rid society of its ills. The Daily Picayune of New Orleans argued along similar lines: “good public policy demands that the statutes of most of the States should be carefully amended,” because “public journals devoted to the publication of news and the suppression of crime and vice often expose bad men for the public good, and they deserve the protection, and not the condemnation, of the laws” (“Libel and Honest Journalism,” 1895, p. 4). The Milwaukee Sentinel also expressed concerns that a recent Wisconsin libel ruling was “contrary to public policy” and suggested it might be time to reconsider the state’s libel law (“The Oshkosh Libel Case,” 1895, p. 12). In New York, the Times editorialized that libel law was often used “to intimidate the press and restrain it from the performance of a public duty” (“The Libel Law and Its Abuses,” 1894, p. 4). When a less-than-ideal libel law was passed in Pennsylvania, the Philadelphia North American explained that provisions that were struck from the law would have provided “a needed measure of protection for the newspapers and the general public as well” (“The Libel Reforms,” 1897, p. 4). When Illinois repealed its retraction statute, the Fourth Estate claimed it was “revenge” against the “bold” newspapers that had exposed legislative corruption (“Illinois Modern Libel Law Repealed,” 1897, p. 2).

Publishers also argued that the public policy interests of justice and fairness demanded more press-friendly libel standards. The existing law “discriminated” against the press, the Milwaukee Sentinel complained (“The Libel Law,” 1897, p. 4), through what the Philadelphia North American called “perhaps the most glaring piece of inequity to be found in the whole statute book” (“Libel Law Reform,” 1897, p. 4), elaborating, in a later editorial, that “while the blackest criminal that ever stepped into the dock is given the protection of progressive and comprehensive legislation, an antiquated statute which only protects those not deserving of protection is made to govern the offence of libel” (“Need of Libel Legislation,” 1897, p. 4). However, publishers assured their readers that they were not seeking special treatment. The Fourth Estate noted that journalists were not seeking “undue immunity or ‘license’ under the law” (“With the Various Clubs and Associations,” 1897, p. 8), and when Philadelphia Editor Charles Emory Smith spoke to the Pennsylvania legislature, he told them, “we are not here asking for any special privileges or immunities. We are here only to ask for just protection against special and adverse discriminations” (“The Law of Libel,” 1897, p. 6). A Pennsylvania legislator speaking in favor of that state’s retraction bill argued, “the newspaper man on trial for libel ought to have the same right in court as a horse thief or murderer” (“House Passes the Libel Bill,” 1897, p. 4). The Fourth Estate was also blunt on the topic of an Ohio retraction statute: “The press of Ohio asks no more than is given to others, but it will no longer accept less” (“Palmer Loses,” 1897, p. 2).

The key problem, many publishers argued, was that they were uniquely vulnerable to “blackmail” through libel suits when they committed errors (“The Law of Libel,” 1895, p. 4; “Libel Law Reform,” 1895, p. 4). Such suits threatened newspapers’ professional role as public servant. The Daily Picayune explained, “the laws against libel and slander, as applied to newspapers, have been productive of a vast deal of vexatious and unjust prosecution in the criminal and civil courts of the country” (“Libel and Honest Journalism,” 1895, p. 4). The Philadelphia North American was even more elaborate in complaining about “speculative libel suits, by which the press of this State has been buncoed, badgered, and in some cases . . . throttled, when it would have told the truth and thereby conduced largely to the public good” (“The Libel Reforms,” 1897, p. 4). Reforms, the Milwaukee Sentinel explained, “will not make publishers less cautious but it will relieve them from the petty persecution from that class of people who are able now to demand ‘smart money’ whenever a newspaper unwittingly commits an error” (“The Libel Law,” 1897, p. 4). By easing the legal burden on newspaper publishers, retraction statutes would free the press to aggressively pursue solutions to the public’s problems, per its self-articulated professional obligations.

Indeed, one cause of the libel problem was that the law did not account for the errors that could arise in high-speed modern journalism, publishers argued. As the Fourth Estate put it, “The honest news-presenting papers are in continual danger because they are all liable to mistakes” (“Note and Comment,” 1897, p. 6). “Mistakes will occur,” explained The Daily Picayune (“Libel and Honest Journalism,” 1895, p. 4) in spite of all of the efforts otherwise, and “an editor or publisher may, as the law stands . . . be adjudged criminally guilty for an act of whose commission he was not so much as aware,” the North American said (“Libel Law Reform,” 1895, p. 4). “Nine-tenths of all actions for libel are based upon statements which are not seen by editors and publishers prior to publication,” according to the Milwaukee Sentinel—it was therefore unjust to punish newspapers because “errors are not always avoidable in the hurry of preparing the large amount of diversified news” (“The Libel Law,” 1897, p. 4).

The various elements of the public policy rationale supporting the need to balance the scales of justice amounted to an appeal to bring the law up to date—institutional maintenance by way of an appeal to modernity and democratic ideals. One Fourth Estate article used the terms “medieval,” “outdated,” and “anachronistic,” to amount to a “grossly unjust” state of law (“Libel Laws and Libel Litigations,” 1897, p. 11); another argued that without a retraction statute, the press in New Jersey “is working under the ancient common law imported from England when journalism was regarded with hostility as an invasion of kingly prerogative” (“The Libel Law,” 1897, p. 1). England was, according to the Philadelphia North American, a place “where the liberty of the press has always been as much as possible restricted” and where the law “proceeds upon the theory that the newspaper press is an enemy against which the public needs to be protected” (“Libel Law Reform,” 1895, p 4). According to the Boston Daily Advertiser, in states without retraction statutes, the press operated under “antiquated libel laws that were in force a century ago before the time of free speech and a free press, from an age when free speech was a thing really forbidden and a free press a thing only to be desired and not expected” (“The Law of Libel,” 1895, p. 4).

Discussion and Conclusion

Journalists used the legal challenges of the mid-1890s to articulate a public policy rationale for legal protection, engaging in institutional maintenance through discourse aimed at cultivating a perception of professional status. External legal pressures—a high-profile privilege case and the constant threat of libel suits—exerted influence on the values and social identity the press articulated at a particularly fraught moment. In reporting on these issues in an internally focused trade paper and externally focused newspapers, the press consistently argued that journalists’ key professional role was to serve the public interest. This role was said to be threatened by zealous pursuit of journalists’ confidential sources or by libel laws that limited the press’s opportunities to excuse or mitigate an accidental libel, which required the support of the public for special legal status in the interest of press freedom.

In discourse surrounding Shriver and Edwards’s privilege case and the question of libel law reform, journalists constructed an identity as professionals performing an important democratic role and therefore requiring special legal status. In the case of privilege, journalists argued that forcing them to renege on promises of confidentiality degraded their professional obligations to their sources and the public. Instead, by favoring journalists’ professional identity as trustworthy and principled protectors of their sources’ identities, the law thereby could acknowledge journalists’ role as a protector of the public interest against political and social wrongdoers. Detractors of the privilege attacked this logic directly, claiming that one fundamental flaw was a difference between why journalists kept secrets, as opposed to why other privileged professionals did, and that another was that a privilege for source identities could just as easily be exploited to the detriment of the public good. Meanwhile, in the case of libel law, journalists connected the need for legal reform to a professional identity of increasing social influence amid a modern industrial world. Because they relied on both speed and accuracy to serve the public’s growing interest in timely news on various topics, journalists called for the law to strike a better balance between their professional interest in satisfying the public appetite for news and the social interest in protecting individuals from the inevitable, occasional, and accidental spread of false and harmful information about people. While the discourse raised concerns about the financial burden of more frequent libel suits—which would align with previous research that argues journalists increasingly saw the press as a business at this time (see Baldasty, 1992)—legal arguments in these cases consistently defined their field as a profession. The connection between legal reform and modernity, on the contrary, is more consistent with previous studies that found journalists articulating professionalization as a form of modernization (see Schudson, 2001; Vos, 2011).

Moreover, in discourse surrounding both legal issues, journalists claimed that their identity as protectors of the public interest was sanctified by public opinion itself—that the public both benefited from and supported their calls for a testimonial privilege and more forgiving libel law standards. This is important both because public support was key to the unique legal recognition the press sought—in the courts and in state legislatures—and because it illuminates how the discourse played a role in defining the press’s institutional relationship to other key social fields: the public and the state. For example, the discourse characterized the press and the public as tandem stakeholders: publishers argued that if it is possible to muzzle, restrain, discriminate against, or blackmail the press through legal standards that place undue pressure on their newsgathering practices, the public is left defenseless against powerful interests that benefit from a lack of public knowledge. Thus, contrary to the arguments that special legal status for the press would protect the secret identities of liars or give scandal-mongers free rein, the press argued that denying that protection was a sure way to let evil-doers go unaccountable. This same logic positions journalists as protectors of the public interest against adversaries in the state who would rather corruption or malfeasance go unknown and unpunished, a professional identity commonly called the “watchdog” role (see Gleason, 1990; Vos, 2017).

Meanwhile, a key difference in the discourse about privilege and libel law reform complicates the press’s position vis-à-vis the public and the state. In arguing for a privilege to protect the identities of confidential sources, journalists positioned themselves as worthy of public and state trust. In contrast, in arguing for libel law standards that acknowledged the modern news industry’s susceptibility to error, journalists positioned themselves as worthy of public and state forgiveness. Despite nationwide lobbying efforts for both journalist’s privilege and retraction statutes, however, libel law reform was markedly more successful (see File, 2017; D. C. Smith, 2014). A full explanation for that discrepancy may lie beyond the historical context and sources included in this study, but it appears that a perception of professionalism among the public or lawmakers did not necessarily lead to success in state houses, nor did a perception of amateurism or sloppiness harm legislative lobbying efforts.

Taken together, the various elements of the public policy rationale for protection against legal threats to common practices of newsgathering that the press articulated in the mid-1890s can be seen as institutional maintenance—an attempt by journalists to reinforce their social status at a moment of insecurity. The rationale for the journalist’s privilege targeted the public’s need to be informed about government or corporate malfeasance and highlighted the risks to an informed populace if powerful government officials could force journalists to reveal their secrets like other citizens. The public policy rationale for libel law reform aimed to raise public awareness about how costly and frequent libel suits for unfortunate mistakes could threaten to undermine the public good served by news delivered at high speed on a variety of topics. Ultimately, the most powerful and lasting discursive theme journalists employed may have been that the public is itself in peril when the press is threatened.

If the profession of journalism is defined by its relationship to external influences, as the institutional approach to analysis would have it, there may be no more consequential realm of struggle for authority than in law and policy: what are the legally defined boundaries of the field? If journalism’s role vis-à-vis the public is a fundamental question for the field of journalism history (see, for example, Nerone, 2015; Ryfe, 2017; Vos, 2017), then questions about how it positions itself in law as an advocate for the public should be at the forefront of our scholarly inquiry in addition to the more normative questions about the proper role of a free press in a democratic society.