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.