Pennsylvania GOP gubernatorial candidate Doug Mastriano last week barred members of the press from attending his campaign rally in the Philadelphia suburb of Warminster. On this week’s episode of Now & Then, “Free Speech: The Power of an Independent Press,” Heather Cox Richardson and Joanne Freeman discussed past arguments over the role of the press in American politics, from the murder of abolitionist journalist Elijah P. Lovejoy, to Joseph Pulitzer’s pioneering of an independent press, to the rise and fall of the Fairness Doctrine. During the tumultuous Nixon years, North Carolina Senator Sam Ervin spearheaded a congressional reckoning with press freedoms that highlighted this complicated interplay between government regulation and political reporting.
In the late Spring of 1971, CBS Evening News anchor Walter Cronkite paid North Carolina Senator Sam Ervin a visit at the Old Senate Office Building. The two men discussed a nascent plan for Ervin to host a set of wide-ranging hearings from his perch as Chairman of the Senate Judiciary Subcommittee on Freedom of the Press.
Ervin was 75 and was a year away from his star turn chairing the Senate Watergate Committee, which catapulted him to the position of a national folk hero. A self-styled “country lawyer,” Ervin entered the Senate in 1954 as a Southern Democrat and promptly played a central role in bringing down Wisconsin Senator Joseph McCarthy. Ironically, then-Vice President Nixon appointed Ervin to probe McCarthy’s excesses for a possible Senate censure. In a memorable floor speech, Ervin, with a dash of machismo, asked, “Does the Senate of the United States have enough manhood to stand up to Senator McCarthy?” Ervin thrilled the liberal wing of the Democratic Party with his stand against reactionary anti-Communism. Two years after his anti-McCarthy stand, however, Ervin helped to write the notorious 1956 Southern Manifesto, which pledged to resist court-mandated school integration.
Ervin was treated with some degree of suspicion, then, by both the Left and the Right. He was rapidly becoming a particular thorn in Nixon’s side, though, criticizing Nixon’s initial accommodations to race-integration busing programs as well as decrying the administration’s proposals for legalizing “no-knock” police raids in Washington D.C.
Political journalist Laurence Leamer described Ervin’s ideology in a magisterial March 1972 Harper’s feature called “The Sam Ervin Show”: “Ervin is pictured as an eighteenth-century libertarian, an absolutist on questions of civil liberties, and an avowed opponent of strong government. This is as much a caricature of Ervin as was the earlier view that he was simply a racist. Ervin’s libertarianism is, in fact, both constrained and subtle; his struggle to preserve the Constitution in a century rapidly approaching 1984 is both magnificent and rather limited.”
Ervin centered his hearings around the Supreme Court’s ruling in New York Times Co. v. United States. In the landmark Pentagon Papers case, the Court held that the Times had not broken the law by defying the Nixon administration and publishing leaked documentation showcasing the folly of the Vietnam War. While the Court had ostensibly limited Executive Branch power, it also created a new standard that Ervin found vague: the government could now censor material if it was likely to cause “grave and irreparable damage” to the American public.
Three weeks of hearings were scheduled to begin on September 28th, 1971. Ervin’s Chief Counsel, Lawrence Baskir, explained the goal of the political event as “a version of freedom of the press cleaned up for the Establishment.” The witnesses reflected this moderate road, with Cronkite joined by a slate including CBS President Frank Stanton and his NBC and ABC competitors, New York Times Executive Vice President Harding Bancroft, and a slate of white and male media professors at top colleges. Ervin even invited one of the Nixon cabinet’s biggest press critics, Attorney General John Mitchell, to explain his position, but Mitchell declined.
Ervin also aimed to address Nixon and Co.’s critical statements about the press beyond their attempt to muzzle the Times. On the eve of the hearings, Vice President Spiro Agnew appeared at the 78th Annual Conference of the International Chiefs of Police at the Anaheim Convention Center and underscored the fragile relationship between the administration and the press. Agnew castigated reporters for their coverage of the uprising at the New York State Prison in Attica. “We again find wide and relatively uncritical exposure being given [to] the most inflammatory and baseless charges made by radical militants and their counsel,” Agnew complained. “How many murderers, robbers, burglars and rapists became known to the public by affectionate nicknames and the awed recital by the liberal press of their organizational or oratorical ability?”
The following morning, Ervin began his opening statement with a not-so-veiled shot at the Vice President: “Some Government officials appear to believe that the purpose of the press is to present the Government’s policies and programs to the public in the best possible light. They appear to have lost sight of the central purpose of a free press in a free society.”
The first two days of testimony focused significantly on the Newsman’s Privilege Act, a proposed law that would have protected news organizations from government subpoenas. Frank Stanton testified in favor of the legislation, arguing that subpoena power was a “particularly insidious threat to the ability of newsmen to carry out their responsibilities effectively,” recounting how the Department of Defense had subpoenaed unused footage from the CBS documentary The Selling of the Pentagon to show that edited interviews were intentionally manipulated to make the government look worse.
Cronkite’s arrival on Day Three, September 30th, triggered a spectacle. Several hundred reporters and observers gathered in a standing-room-only crowd to watch Cronkite’s statement in the Senate Caucus Room. The legendary anchorman came out firmly against all forms of government regulation of the news, including the Federal Communication Commission’s enforcement of the Fairness Doctrine, which required broadcasters to give equal time to both sides of political debates. “The time is past when there can be any legal justification for controlling broadcasting’s program content,” Cronkite declared.
Cronkite’s emotional statement—in sharp contrast to his usually-unruffled on-air persona, included a dire diagnosis: “Broadcast news today is not free. Because it is operated by an industry that is beholden to Government for its right to exist, its freedom has been curtailed by fiat, by assumption, and by intimidation and harassment.”
The newsman also warned—without calling out Nixon directly—that the FCC and other rules on televisual content could be hijacked by a demagogic president: “The power to make us conform is too great to ever lie dormant. The ax lies there temptingly for the use of any administration–Republican, Democrat, Wallacite, or McCarthyite. We are at the mercy or whim of politicians and bureaucrats and whether they choose to chop us down or not, the mere existence of their power is an intimidating and constraining threat.”
The following witness, George Washington University Law Professor Jerome Barron, disagreed with Cronkite. “Censorship is no less censorship if it is in private hands,” he said. Barron argued for strengthening the Fairness Doctrine through legislation that would require newspapers and television stations to accept paid content expressing viewpoints that were generally ignored in coverage, like more aggressive statements for and against American involvement in Vietnam.
Ervin unsurprisingly took Cronkite’s side in the debate, arguing that any law designed to compel newspapers to print editorials would “curtail the newspaper to say things that the newspaper doesn’t believe.”
Another anti-Cronkite voice emerged when hearings resumed in late October: David Brinkley, the popular NBC Washington reporter and the longtime co-host of the Huntley-Brinkley Report, argued that the tension between broadcasters and Nixon was overblown. “As for intimidation, there’s none that I know of,” Brinkley contended. He also argued that newscasters had become irrationally fixated on federal regulators. “I’ve had nothing to do with the F.C.C., and to be honest about it, care nothing about the F.C.C.,” Brinkley admitted. “They’ve never bothered me. I’ve never bothered them.”
The dismissals of Cronkite’s libertarian views did not slow Ervin. In January 1972, he scheduled a new set of hearings focused on FBI harassment of CBS correspondent Daniel Schorr, an early “dirty trick” coordinated by central Watergate figures Charles Colson and Frederic Malek.
Ervin’s hearings appeared increasingly prophetic over the next two years, as successive revelations of the Nixon’s Watergate-related campaign against the press, from the Enemies List to full-throated dismissals of Carl Bernstein and Bob Woodward’s Washington Post exposé, bolstered the validity of the Senator’s concerns.
Now, fifty years after Ervin’s quest—and as GOP hostility toward the free press becomes a more and more central part of its strategy—highlighting the plight of the press seems even more necessary to securing a functioning democracy.
For more on Sam Ervin, read Karl E. Campbell’s 2007 Senator Sam Ervin, Last of the Founding Fathers and Logan E. Sawyer III’s 2021 legal article “Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr.”
And head to the Twitter account of author and Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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