A Story About the Collapse of American Journalism, Part 8

Wherein the Press is, Technically, Free

The Sedition Act expired in 1801. Thomas Jefferson assumed the presidency and pardoned everyone who had been prosecuted, which was nice but did nothing to reverse the damage done to them individually or to the free press collectively. Congress even repaid their fines. But, remember, no court ever ruled on the Act. It never made it to a place where it could be judged on its Constitutional merits, which means the question regarding whether the government could use the law to silence the press remained for a long time.

Andrew Hamilton's argument from 1735 was still not fully settled law. The press was technically free, but as the Federalists showed us technically free is a long way from protected by the Constitution.

By 1900 the media had started to shift into what would become an economic model that revolved around professional standards, local ownership, and geographic advertising/subscription monopolies. For much of the 20th Century, this model gave the press the resources and independence it needed to properly do its job. Before it got all the way there, though, and before we got to the 1960s and Sullivan, a group of folks were producing the type of investigative work that would come to define the potential of the whole endeavor — without the benefit of Sullivan’s protections.

Lady and Gentleman,^[1] meet the Muckrakers.

To take a proper look at the Muckrakers would take its own 10-part series so we aren’t going to do that here. I think a free press is inevitable in a truly free society, and I think the Muckrakers demonstrated this by sticking their fingers in the eye of power even without the safety net enjoyed by journalists in the latter part of the century.

But man did that take some bravery.

McClure’s Magazine, January 1903

Eventually, this movement coalesced around one issue of one magazine, albeit not quite on purpose. Some folks call it the starting gun, some call it the apex, but whatever you call it, the January 1903 issue of McClure’s magazine is perhaps the best example of the power of real, principled journalism, of the power of a free press, of the importance of free information to a free and functioning democracy.

But to understand how this all came about, you first have to understand how the magazine operated, because McClure’s model proved that readers wanted good journalism, would pay for it, and could be trusted with the truth. Most accounts of the magazine’s early years show that McClure paid his writers well, paid their expenses, and gave them the time and space necessary to produce thorough, accurate, and deeply researched journalism.

In a remarkable bit of cosmic serendipity, three of those writers submitted stories created under that model for publication at the same time. 

The three articles were each part of ongoing investigative series being written by each individual author. Each series had been running simultaneously, but the January 1903 issue was the first time that an entry in each was ready for publication at the same time, turning that issue of McClure’s into perhaps the most famous single issue of a magazine in American history.

Journalists Ida Tarbell, Lincoln Steffens, and Ray Stannard Baker were all working on different stories, that turned out to be the same story told in different ways, and none of them had any idea. When the magazine was put together for the month, Publisher SS McClure noticed that the three stories came together in what he described in his editorial as the story of “Capitalists, workingmen, politicians, citizens — all breaking the law, or letting it be broken.” 

It’s a minor miracle they were each able to exist at all. That they ended up in the same issue of the same magazine is pure cosmic intervention. 

Ida Tarbell

Tarbell’s work, especially, stands out as the template of modern investigative journalism. Her article was the third chapter of an ongoing 19-part History of the Standard Oil Company.^[2] Chapter 3 covered a scheme by which Standard Oil used kickbacks to the railroads to get them to give the company better shipping rates than their competitors, allowing Standard Oil to undercut them and create a monopoly under Rockefeller’s control.^[3] It was a monopoly being built through fraud, and McClure’s gave Tarbell the time and resources to devote five years to reporting it out. Tarbell examined hundreds of corporate documents, interviewed executives (who must have underestimated her and almost certainly regretted the access they gave her), and even found internal records that documented the kickback scheme. It took years of patient work, but Tarbell is, arguably, the inventor of modern investigative journalism.

The resulting work was published in the magazine and, eventually, collected in a book published in 1904 called The History of the Standard Oil Company. Tarbell’s series contributed directly to the Supreme Court’s decision in 1911 that cited a violation of the Sherman Antitrust Act and broke Standard Oil into 34 separate companies, many of which are still around today.

And, yes, we are going to pause a moment and note that I keep saying “she.” This was a woman taking the fight to powerful men almost two decades before the 19th Amendment would finally “give” women the right to vote. Someone get this lady a wallet.

Lincoln Steffens

Steffens’s piece, called "The Shame of Minneapolis,” was the second installment of his Shame of the Cities series that also featured articles on St. Louis, Pittsburgh, Philadelphia, Chicago, and New York. 

Steffens’s history as a police reporter in New York gave him a great look at the inner workings of a major municipality. The thesis of his Shame of the Cities series was that municipal corruption was not caused by individual bad actors, but by a system that allowed corruption, even rewarded it, because of the indifference of ordinary citizens, particularly the businessmen who were partners with the corrupt politicians in a system that seemed to benefit them both. “He is a self-righteous fraud, this business man,” Steffens wrote. “He is the chief source of corruption, and it were a boon if he would neglect politics.”

This article documented how Minneapolis Mayor "Doc" Ames had turned the Minneapolis police department into a criminal enterprise. Ames had named his brother the chief of police, fired 107 of his 225 police officers during the first few weeks of his term, and replaced them with people willing to participate in the criminal acts, and generally created a system that allowed all sorts of illegality to operate out in the open as long as the mayor’s office got a cut of the profits.

Crucially, but also at great cost to McClure, Steffens went to each city himself. He interviewed everyone, from the prosecutors, to the reform figures, the officials, the fixers. He read the court records. He got local reporters to share their knowledge, and in St. Louis he even co-wrote the first article with a local reporter.

Just like Tarbell, Steffens‘s series would be collected and published in book form in 1904. The work would be widely cited later as a direct contributor to municipal reform movements across the country in the Progressive Era.

While the first two pieces focused on the power wielded by corporate and government actors, the third article in the January 1903 issue of McClure’s focused on the power wielded by labor unions in Pennsylvania.

Ray Stannard Baker (From the Great State of Michigan!)

Baker grew up in Michigan, which means he was both handsome AND tough, and attended law school briefly before leaving to become a journalist. He cut his teeth covering strikes and other industrial conflict for the Chicago Record before his contribution to McClure’s called "The Right to Work: The Story of the Non-Striking Miners.” Baker’s piece covered the aftermath of a 1902 coal strike in Pennsylvania, but was noteworthy because it focused on the violence and harassment faced by workers who crossed the picket line and refused to join the United Mine Workers union.

That’s right. In an era when most progressive journalism focused on corporate or government corruption and bad acts, Baker applied his investigative journalism methods to document union violence against non-union workers. And he wasn’t anti-union. Baker made a career covering labor with a sympathetic eye, but he wasn’t willing to excuse violence and corruption because it came from folks people thought of as the “good guys.”

So, let’s say you are the publisher, McClure. Your editors and writers do their thing and they present these three articles as the cornerstones of the issue.

What do you notice?

McClure noticed that all three were simply following the evidence where it led, and they did so no matter who ended up looking bad as a result. Tarbell focused on corporate power. Steffens focused on political or government power. Baker covered the power held by labor. What all three found in common was that they could document institutions that were serving themselves instead of the people they were supposed to benefit.

The common thread, as McClure saw it: everyone — capitalists, workingmen, politicians, citizens — was either breaking the law or letting it be broken. And no institution was exempt. Not the corporations. Not the unions. Not the city governments. Not the churches. Not the colleges.^[4]

McClure knew what he had, collectively, in this issue, as evidenced by his editorial. I wonder how readers reacted to seeing all three stories next to each other, though. The years leading up to 1900 were the era of “Yellow Journalism,” a form of journalism more concerned with sensationalism and profit than with truth or justice.^[5] This issue was probably starkly different than what readers had gotten used to over the years, even for a publication like McClure’s that was known for “real” journalism.

When McClure wrote his January 1903 editorial, he was describing what all three articles shared, but he also could have been laying out why they were so important. All three articles documented specific instances of an institution failing to do what it existed to do. All three heavily utilized primary source reporting. The reporters all reviewed records and conducted interviews with people directly involved in the stories instead of resorting to speculation or assertion. All three stories were given the money and time needed to develop. The investigations took years. Finally, all three were writing about something bigger than the specific story they told. Each of them was writing about a system that was failing because the people responsible for maintaining it had decided it didn’t apply to them.

And in doing so they gave us the blueprint for how to do it for the next 110 years or so.

And thus, the Muckraker Era was born. However, those doing the investigative work and standing up to power still lacked the protections that could keep them from being targeted by the government and its powerful allies simply for practicing their craft and telling the truth. We wouldn’t get that until 1964 when the Supreme Court decided NY Times V Sullivan.

But wait! We can’t leave the muckrakers without talking about that name!

Upton Sinclair, another famous muckraker, produced an investigative novel called “The Jungle,” which detailed really bad conditions in Chicago meat-packing plants. People were pissed about the working conditions, sure, but they were more pissed about quality control in the places that manufactured their food. In 1906, Congress passed the Meat Inspection Act, and the Pure Food and Drug Act, due in part to the influence of Sinclair’s work.

Theodore Roosevelt used his presidential weight to push both pieces of legislation through Congress and is widely associated with both laws. You’d think that would make him happy, but old Teddy wasn’t that easy to please. Even though the work produced signature pieces of legislation for him, he didn’t like the journalists who did it and in a 1906 speech referred to them as “muckrakers,” borrowing from an image in an old text of a man so focused on raking the muck at his feet that he couldn’t see the good of the world. In other words, he meant to warn the journalists against tearing things down and threw “muckraker” at them as an insult.

They picked it up and wore it as a badge of honor. That badge, by the way, is also what this publication is named after and tries to honor. Tell the truth and let the chips fall where they may.

What they should have also taken as a point of pride is that they did all of this without the Constitutional protections for the press first argued by Andrew Hamilton in 1735 and not to be written into law until 1964 when the Supreme Court decided New York Times v Sullivan.^[6]

Talk about working without a net.

NYT v. Sullivan: The Law Finally Catches Up

Holy shit! We’re finally here! Feels like we’ve been teasing Sullivan for almost as long as it took for someone to finally write it down and mean it,^[7] so let’s get right to it.

It’s 1960. The muckraker era has faded.^[8] There have been a couple of World Wars and a Great Depression. The press is evolving, but the economic model has largely stabilized.

Local ownership? Check. 

Advertising monopolies? Check.

Professional journalism standards? Check.

The New York Times, like other Northern news organizations, has a southern bureau that operated out of Atlanta. It was led by chief correspondent Claude Sitton and was a primary source of coverage of the Civil Rights Movement throughout the South.

And, Bubba, things were moving.

Tell me, what did the following people have in common on March 29, 1960?

• Harry Belafonte
• Marlon Brando
• Diahann Carroll
• Nat King Cole
• Dorothy Dandridge
• Ossie Davis
• Sammy Davis, Jr.
• Langston Hughes
• Eartha Kitt
• John Lewis
• Sidney Poitier
• Jackie Robinson
• Eleanor Roosevelt

If you guessed they were all Pisces, well, you might be right but I’m not going to look it up. What I was going for is that they were all among the many, many signatories to an advertisement paid for by the Committee to Defend Martin Luther King and the Struggle for Freedom in the South published in the New York Times to solicit money to help defend Civil Rights leaders. The gist of the controversy was that the ad contained errors. They were unintentional, but they were real.

You know what, you should check the ad out for yourself right here. 

Among the errors? The ad claimed King had been arrested seven times when it was actually four, it stated as a fact that police had “ringed” the campus of Alabama State University, which was disputed, claimed officials had “padlocked” a dining hall to starve students, which had turned out to be untrue, and other claims about the conduct of the Montgomery police.

The problem for the Times starts when the advertisement comes in and, impressed by the names on the bottom, they don’t fact-check the advertising copy. So, yeah, mistakes were made, but the question becomes whether those mistakes should effectively shut down the Times’s operations in the South. 

And the reason that is the Times’s problem? Remember John Peter Zenger? Remember his role in the activity that got him charged with seditious libel? He wasn’t the author of the offending materials. He was the printer. And just like Zenger all those many years before, the Times wasn’t the author of the ad, but merely the printer. The plaintiffs in the Sullivan cases didn’t sue Eleanor Roosevelt or Nat King Cole for the copy that appeared above their signatures. They sued the paper itself in hopes they could shut it down.

The same pattern, played out in the same way, by different people, in different generations.^[9]

So they make some minor mistakes in the copy. You know what they don’t do though? They don’t name anyone specifically as having done anything wrong. They don’t say that any particular person did any particular thing, just that all of these things were happening by Montgomery police, the commissioner of whom was a man named L.B. Sullivan.

Now, in Tort law there’s this concept called the “egg-shell skull plaintiff,” which is basically just a funny way of saying that you have to take your plaintiff as you find them. If you negligently hit someone in the head with a cracker, but they have a skull so thin that their head splits on impact, you’re still liable even though you didn’t intend to cause that kind of harm.

And that is all just a long way of saying that I think old Mr. Sullivan must have had some egg-shell feelings because somehow he decided this advertisement was all about him.

Sort of. He and several other state officials decided it was about each of them, and conspired to each sue the Times for a combined damages total of $3 million. That’s a lot of money. A lot. In today’s money that’s actually about $33 million, so I think the technical term is fucking shitload. All for kind of, sort of, not really actually saying anything about them individually.

You’ve caught on by now, right? The goal of the lawsuits had nothing to do with the factual errors in the copy and everything to do with shutting down the Times operations in the South and the outbound flow of good journalism that was letting the rest of the country in on what was going on down there.

And, I mean, good try, right guys? There’s no way a jury listened to these folks try to twist the ad copy into defamatory statements against them all personally and bought it. No way.

What’s that you say? An all-white Montgomery jury?

Ok, fine, they convicted him, but at least it took a while, right? I bet they really had to deliberate.

Two hours?!? What the…ok, but at a minimum they recognized it for the bullshit money grab attempt to shut down the free press that it was and only awarded some nominal fee and…

Nope. They didn’t go all the way to the $3 million combined amount sought across each of the coordinated cases against the Times, but they still awarded Sullivan alone $500k, the largest libel award at the time in the history of the state.^[10]

The whole process shows us the same pattern we saw in Zenger and in the Sedition Act prosecutions. Different centuries. Different targets. Same mechanism: use the law to make the press too expensive to function.

Fortunately for Democracy — and unlike today — the country had an actual, thinking, functional, Supreme Court. Herbert Wechsler, arguing on behalf of the Times, equated Alabama’s defamation law, as applied in this case, with a functional form of seditious libel. Basically, to apply the law in this way is to do the same thing the Federalists did under the Sedition Act of 1798. 

This gets the court’s attention, and for the first time the United States Supreme Court is finally, finally, going to get a chance to take a swing at the Constitutionality of such conduct.

And they didn’t miss, ruling 9-0 on March 9, 1964, in favor of the Times and holding that a public official cannot recover damages for defamatory falsehood relating to official conduct unless the statement was made with "actual malice,” meaning knowledge of falsity or a reckless disregard for truth.

Justice William J. Brennan wrote the majority opinion for the court and made the Sedition Act connection himself. 

"This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, which first crystallized a national awareness of the central meaning of the First Amendment... Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."

Brennan went on to cite the greats you’ve already read about: Jefferson. Madison. The Virginia Resolutions. The opinion is not only a win for the free press and democracy, but a verdict on the Sedition Act that was 163 years overdue. It wasn’t only an overdue verdict on the Sedition Act, but it was finally — finally — Andrew Hamilton's argument ingrained into constitutional law. 229 years after he made it in a New York courtroom.

With a wicked bad case of the gout. 

The Current Threat

It took 229 years to get us to the point where the freedom of the press was finally recognized as essential to a functioning democracy and worthy of Constitutional protection. Almost immediately, forces who like it better when they can hold onto power through suppressing opposition speech began working to undo it. 

Justice Clarence Thomas has written explicitly that Sullivan was wrongly decided and should be overturned. Justice Neil Gorsuch expressed similar concerns in his own writing in the same case.^[11] The current administration has filed and encouraged defamation suits against media organizations, investigations into individual journalists, and allowed its allies to consolidate media power in efforts to squelch opposition speech.

The argument Hamilton made in a New York courtroom in 1735 took 229 years to become fully settled constitutional law. And today it is under active pressure from people who would prefer it weren't. But we’ll talk a lot more about that in a couple weeks.

Next Week

Now that we know what the law was supposed to protect — and what it took to get that protection in place — come back next week for a look at what the press did with it when it had it. Or what I call: “Why I Fell in Love with Journalism and You Should Too.”^[12]

FOOTNOTES:

1. At this point my mom and dad are likely the only people reading this so I might as well just address them directly.↩︎
2. Tarbell was born in Western Pennsylvania oil country. Her dad built oil tanks and prospered before the boom, then the Standard Oil secret rebate scheme ruined his business and the whole community she grew up in. To me, it’s especially noteworthy that she chose to use professional journalism standards to seek her revenge and that those standards were so well put-together that they essentially became the standard for the whole industry. I would have just gone straight-up ninja assassin.↩︎
3. The precise term here is actually “rebate,” as the scheme worked by the railroad overcharging competitors and refunding Rockefeller the difference, but “kickback” is colloquially similar enough that I can use it without having to disrupt the narrative by explaining the whole scheme. I guess we do that in a footnote instead.↩︎
4. That’s also pretty much the thesis of this publication.↩︎
5. The modern-day, inbred, descendant of Yellow Journalism is “clickbait” or “engagement farming” or whatever the kids are calling it these days.↩︎
6. Or another badge of honor, I guess. It’s not like there’s a limit.↩︎
7. Which, for those keeping score at home, was, officially, 229 years.↩︎
8. But in 2026 The Muckraker Era is just starting baby! Hello? Anyone?↩︎
9. Now ask yourself: Why does the current administration keep suing news organizations and law firms?↩︎
10. Or about $5.5 million today.↩︎
11. I can’t just let that line sit there without mentioning that both have transparent conflicts of interest and agendas that, frankly, have to be mentioned anytime one of these two makes any kind of statement. We try to keep it non-partisan here at The Muckraker so I’ll just say, again, that this Court is bought and paid for. Much of what comes out of the Roberts Court is pretzel logic twisted to fit the agenda of the corporate interests and big donors who regularly take these robe-wearing hypocrites on hunting and fishing trips. That’s not me being partisan, that’s me being critical of a Court with no ethical guardrails and that regularly seems to be carrying out the wishes of those big donors instead of honoring the intent of the Constitution.↩︎
12. It’s not really called that.↩︎