One recurrent issue sparked some of the Commission's liveliest debate: was reforming the press a task for the government? Over the past decade and a half, the federal government had taken on vast new regulatory responsibilities; now it was leading an unprecedented wartime mobilization. As law professor Zechariah Chafee put it in his Commission volume, Government and Mass Communication, "Why should the tendency toward collectivism stop when it is a question of regulating newspapers?"46

Why indeed? Chafee's Harvard colleague William Hocking could think of no reason. It was time, philosopher Hocking thought, for people to recognize "the fundamental principle that freedom of the press moves in the context of responsibility; and that the government proposes to regard this responsibility seriously." In his view, "the government has final responsibility for the work of the press insofar as the press presents to citizens the truth without which they cannot make responsible political judgments.... We cannot leave to private agencies alone the ultimate responsibility for the service of news--for this essential phase of public education in our world today." At another meeting, Hocking compared newspapers to public schools. Both, he said, perform a social service so vital that it cannot be left to the caprice of the marketplace; the government must step in.47

While philosopher Hocking began with a presumption in favor of press regulation, First Amendment scholar Chafee began with a presumption against it. Chafee contended that the school analogy undercut Hocking's argument. "The present public schools are just like what I don't want the newspapers to be," he said. "The taxpayer says he pays the bills and he says he is going to say what kind of teaching shall be given--no evolution in Tennessee.... As a result you get a poor kind of education."48

Chafee also maintained that party politics would invariably distort regulation of the press. An administration would use the law to "silence ... hostile voices." He thought that "the only control has to be within the heart and mind of the man who does the purveying."49

"Wouldn't you enlarge that," asked Hocking, "and say that the control would be within the community?"50

"No," answered Chafee, "because the only way that the community can exercise the control is through government officials."51

The dispute boiled down to divergent ideas about the locus of state power in a democracy. Whereas Hocking spoke of regulations growing out of the collective wisdom of the community, Chafee spoke of regulations enacted and enforced by self-interested politicians--"the shadow of a magnified censor in terms of a ward alderman," as Hocking disdainfully put it.52

The two men also disagreed about the relationship between moral duties and legal duties. "I certainly recognize the moral duty to tell the truth," Chafee said, "for example, to tell the truth about the differences with Spain over Cuba in 1898, but do you want to make that a legal duty? That is, do you want to have the sheriff able to put his hand on somebody's shoulder for violation of that duty?"53

Hocking did indeed want to transform moral duties into legal ones--not necessarily through criminal penalties, but at least through conditioning legal rights on upstanding behavior. "You make people responsible for deserving the rights that they are given," he said. "They must continue to deserve them. The press must continue to deserve its right of freedom, and that does modify the impact of the First Amendment." It was time, he believed, to correct the "pernicious impression" that constitutional liberties are "unconditional and unalienable."54

In fact, Hocking said, he liked to think that someday the Bill of Rights would carry a codicil explaining that the specified liberties extend only to citizens who exercise them responsibly. It was, he allowed, a "quixotic possibility."55

Such a codicil, responded Reinhold Niebuhr, would have a profound effect. "If ... you say that the rights now asserted in the Bill are actually qualified rights legally--not morally but legally--you destroy the Bill of Rights," he said.56

In the end, both Chafee and Hocking shifted their positions in ways that reduced, but did not eliminate, their disagreement. "Like many other members of the Commission," Chafee wrote, "I started with the assumption, growing out of the First Amendment, that the less governmental control, the better." But, he observed elsewhere, he came to realize that "simple dogmas, either collectivist or individualist, must give way to the spirit and method of pragmatism." He said he had found a memo from Niebuhr "very helpful" on the necessity of striking a balance. On the one hand, "too much social control over the media of communication may destroy freedom"; on the other hand, "mere emphasis upon competitive freedom ... may lead to increasing disproportions of power to the point where freedom is destroyed."57

Hocking also spoke of striking a balance: "I think we are all agreed in essence, that laissez-faire no longer does the work. We are also agreed that it is not a matter of collectivism in principle, but that we should like, if possible, to find a statement of the principle which would guide us between those two points."58