Prior Restraint No, Common Sense Yes

"Democratic governments should be largely open and transparent governments. Yet even the most open and democratic government will in certain settings require some measure of secrecy or confidentiality to function appropriately." - Rodney A. Smolla

In their never ending pursuit of destroying the current federal administration, the New York Times has once again placed their arrogance ahead of the lives of Americans. Once again they have chosen to publish details of a secret program, one that targeted terrorist finances. Within their own article, the authors admit that the program is both legal and effective. Yet they hide behind the claim of the “public's right to know” as their only justification for informing terrorists of yet another way our government tracks them.

There are two issues which I would like to address in this essay. The first is whether or not the press has a right to publish any information, however obtained. The second is whether or not the government can prevent the press from publishing secret information. Incidentally, although I disagree wholeheartedly with the Times decision, I do not believe it rises to the level of treason, a charge often applied to the latest issue. However, that will have to wait for another day.

To the first point, we must examine what right is actually granted by the Constitution. Chief Justice Warren Burger once wrote ''For the First Amendment does not speak equivocally. . . . It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."

To read the language in the “broadest scope” would mean that the word “press” means both the physical device and the institution itself. As much as we may wish it to be otherwise, this means that Justice Potter Stewart was at least partially correct when he wrote that “The Free Press guarantee is, in essence, a structural provision of the Constitution. Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals. . . . In contrast, the Free Press Clause extends protection to an institution.” That would certainly lead to the conclusion that the newspapers and other media have a Constitutional right to publish any information that they happen to have.

What Justice Potter failed to recognize, however, was that this right is not held exclusively by the institution of the press. The press is a proxy for the people, not a regent of a right granted to the populace. The Free Press Clause grants a right concurrently to the people as individuals. Thus, the same rules that apply to a private citizen must apply to the press as an institution. If possession or dissemination of some particular knowledge by an individual would be a violation of some law, it is also a violation of the law when done so by the press.

Which brings us to the second point – whether government can prevent the publication of certain information. In his famous Commentaries, Sir William Blackstone wrote, “Where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law 'the liberty of the press', properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.” [emphasis in original]

This doctrine is known as prior restraint. Very simply, it means that the although the government cannot prevent the publication of information, the press is responsible under applicable law for what they do publish. Since US law was based on the English Common Law, prior restraint was precedent in America until the middle of the 20^th Century.

The first inroad into overturning the precedent came when Chief Justice Charles Hughes ruled that a newspaper had a constitutional right to publish, and no government could prevent that except if the country was at war and some emergency warranted prior restraint. Newspapers could face legal problems on other grounds, and of course, individuals were still able to sue for defamation. Later, Justice William Brennan, Jr. excepted from punishment any stories that involved public officials and the performance of their duties, except when a paper knowingly and maliciously published things that were untrue.

The final blow came when Justice William Douglas wrote “These disclosures [the Pentagon Papers] may have a serious impact. But that is no basis for sanctioning a previous restraint on the press. . . . The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. A debate of large proportions goes on in the Nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our national health.”

Although in all cases, SCOTUS left open the possibility of using prior restraint in cases involving information that was classified, the “public's right to know” mantra had effectively been given full license by the courts as the be-all, end-all defense for press freedom. In part this is true because only an informed populace can participate effectively in the government. Since practically it is impossible for a single person to personally attend every committee hearing, every trial, etc. the only way to stay informed is through the press in all its media options. That is essentially the position that SCOTUS has taken in abandoning prior restraint as a legitimate tool of the government to restrict the press.

The interesting point is that SCOTUS has never ruled directly on prior restraint in the context of “clearly sensitive information.” None of the prior restraint cases that have reached the Supreme Court have had classified information at the core of the controversy. Rather, SCOTUS has left the exception implied and not affirmed. The government heretofore has been either unable or unwilling to directly challenge prior restraint in such a case, relying instead on the press to engage in self-censorship of sensitive information illicitly obtained.

The unfortunate consequence of this is that the NYT seems to think that they and they alone get to determine what is suitable for publication, and therein lies the problem. No one elected the editorial board of the NYT, and yet they think it is their prerogative to decide what passes muster under the “clearly sensitive” exception that SCOTUS in theory still recognizes. There is no independent check on the decision of the editorial board, and whether it is hatred of President Bush, arrogance, or just plain stupidity, they continuously decide the issue in favor of the foreign terrorists instead of the safety of America.

It's not rocket science. Freedom of the press is not an absolute right, and just as all similar rights, carries certain responsibilities that cannot be abandoned “in the interest of the public.” It appears that the only war the NYT recognizes is the war against the war. It is time for the Bush administration to take the Times to task over the most recent revelation. At the very least, it is still against the law to disclose classified information, and this may make the perfect case for SCOTUS to rule on the last remaining exception for prior restraint.

What Is Going On?

We will not tolerate these attacks by outlaw states. We will not cave in. - Ronald Reagan

I saw a group of terrorist-apologizing, anti-war zealots engaged in one of their frequent protests today. They carried a banner that read “We stand for peace and tolerance.” Their message was that all the problems in the world are caused by America, that the Muslims are peace loving freedom fighters, and that somehow, the Iraqis were better under Saddam than they are today (just don't ask for specifics). Despite studies that show Iraqi citizens today are safer than even citizens in Washington, D.C., they felt the need to continue to speak the lie that the situation in Iraq is getting worse.

Even though none of them have ever been there, even though none of them have ever spoken with a soldier who believes strongly in his mission, even though they live in the freedom guaranteed to them by those who are willing to serve, they insist that a little tolerance, understanding, and hugs will solve the problem that 1500 years of human history has not.

Muslim extremism did not begin after America rose to prominence. Islamofascists have been terrorizing the Middle East for as long as Islam has been around. Where do the liberals learn their history? How can any rational human being deny the clear record of violence?

The Muslim hatred of the Jews did not being with America's support for an independent Jewish state. The Muslim conquest of the Iberian peninsula began and ended long before Europeans first set foot on the North American continent. The Muslim subjugation of blacks up and down the African coast went on for nearly 1000 years before the first slave was brought to America. The attack on the USS Cole, the Khobar Towers bombing, and the killing of Marines in Beruit all predate America's involvement in Iraq. The senseless destruction of the stone Buddhas in Afghanistan had nothing to do with America. Muslims don't hate westerners because America is in the region. America is in the region because of the intolerant Muslim hatred of westerners. That is reality. It is incomprehensible to me how anyone can believe that withdrawing from Iraq will change this.

America has tried appeasement before. During the 1790s, America was a fledgling democracy far from the “civilized” part of the world. American merchant ships were seized by the Barbary pirates right along with the ships of the other western nations, not because they were American, but because they were not Muslim. All western nations were forced to pay tribute for the “privilege” of safe passage. Hundreds of citizens were sold into slavery. America sent emissaries to negotiate with the Pacha who promptly sold the emissaries into slavery as well. Appeasement does not work. It cannot work. There is no Islamic word for “truce” despite what the MSM and various Hollyweirdos are telling you.

The only thing Islam understands is force, and it wasn't until the US Navy succeeded in blockading and cannonading Tripoli while the Marines fought a heroic battle at the gates that the Muslim pirates stopped harassing American merchant ships. However, the US Navy was compelled to return to the region following the War of 1812 as a show of force to prevent a resurgence of the pirates. The Pacha was finally beaten into submission and the tribute ended. This was not a truce. This was the “regrouping” which the Koran allows (regrouping, of course, being the proper translation of the Islamic word). This was also the first time the entire free world had their collective posterior saved by America. It was not the last.

From the early 1800's to 1980, Muslim extremists did not cease their jihad, they merely pursued other targets because they perceived the American military to be too strong to engage directly. In the 1980s, the Islamofascists believed they were finally in a position of strength and the attacks on American interests resumed. However, they sought to avoid provoking America into a direct confrontation. Relying on terrorist activities, they instead sought to influence public opinion to force America to withdraw from the Middle East so that they could pursue their conquest unimpeded. Even today, the small number of jihadis try to avoid direct battle with the American soldiers because they are weak and we are strong.

But they are not stupid. The entire world saw what happens when America loses the political will to continue a fight. The more the liberals and MSM portrayed the negatives of Viet Nam, the more the average American turned against the war effort and what it meant. Even though we were winning the war, the negative sentiment forced America to “cut and run,” dooming millions to death and millions more to a life of misery under Communist rule. Now, the terrorist's best friend is the American liberal and his MSM allies. Their only goal is to cause just enough havoc to get on the 6 O'Clock news in the hopes that one more citizen will sour on the effort to bring democracy to another desperate people.

In the meantime, we sit and watch as the Hollyweird liberal elite spout anti-American drivel and chastise soldier and sailor alike. Every casualty is hyped out of all proportion while they decry the very country that made them multi-millionaires. And despite the purported hatred of America, not a single one of them has chosen to leave for Iraq or Mexico, or even Canada. Today more and more films and TV shows are made in Canada because of very favorable movie-industry tax structures and the lack of unionized labor. The very liberals who talk about the “illegal war for oil” and the “exploitation of the poor soldiers” are more than happy to flee the high wages demanded by their fellow liberal union workers in order to keep more money for themselves. All the while telling the rest of us that they know better than us what is good for America.

Recently, the Democratic Party asked Martin Sheen to run for Senate from Ohio. When declining, he said “You've confused celebrity for credibility.” If only Martin would take his own advice and just shut up. For one brief moment, one of the worst of the Hollyweird crowd had a lucid thought in which he realized that he was not in fact an expert on foreign policy. He was not an expert on public policy. In point of fact, the only thing he was expert at was standing where someone else told him and saying words someone else wrote. And this is the icon of the liberal left?

Irresponsible Congressmen like John Murtha and Lynn Woolsely are calling for an immediate withdrawal of troops from Iraq. Woolsley even wears her hatred of America like a badge of honor by criticizing her less liberal Democratic opponent for Congress for not endorsing the “cut and run” mantra. They are encouraging college students to break the law and deny military recruiters from campuses around the country. Rather than chastise them, the MSM gives them glowing endorsements and free publicity. Where are the feminists criticizing the Islamic treatment of women? Where are the liberals complaining about forced dress codes, the lack of a free press, and mandatory attendance at religious services? This is insane. These are all things about which they routinely hold press conferences when they find it in America.

It's not rocket science. America did not ask for this fight, but we will finish it. If we give in to the liberals' wishes and flee from our responsibilities, we will condemn even more people to a life of terror and misery, worse than anything the Communists in Viet Nam were able to “accomplish.”