Readings on the fourth of July

by sam on 07/4/2006

As is becoming tradition for me, I went to go break out my portable Thomas Jefferson, or perhaps my Federalist Papers, to find something pithy to quote on this July 4th. Unfortunately, I then remembered that I lent a whole bunch of these types of books to my brother before he went to the Pacific, because he was interested in that sort of thing (some of them may actually be sitting at my parents house in Massachusetts, but regardless, they’re not in my apartment, making them very hard to quote from).

Nevertheless, I was determined to find something inspiring, in these times. And then I remembered that I still have all of my law school textbooks (yes, I’m that kind of dork). So, without further ado, here’s selected portions of the incredibly timely Hugo Black in New York Times Company v. United States, 403 U.S. 713 (1971) (particularly relevant portions bolded by me) (I should also point out that the “court’s” decision, was per curiam, meaning that it was an opinion of the court without specific authorship, and was very short – the individual justices then went on to write their own concurring opinions):

I adhere to the view that the Government’s case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgement of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. ***

***Both the history and the language of the First Amendment support the view that the press must be left free to publish the news, whatever the source, without censorship, injunctions or prior restraints.

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.***

The Government’s case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

“Now, Mr. Justice [BLACK], your construction of ***[the First Amendment] is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that to me it is equally obvious that ‘no law’ does not mean ‘no law’, and I would seek to persuade the Court that this is true. ***[T]here are other parts of the Constitution that grant powers and responsibilities to the Executive, and *** the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.”

And the Government argues in its brief that in spite of the First Amendment, “[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the Presidency over the conduct of foreign affairs and his authority as Commander-in-Chief.”

In other words, we are asked to hold that despite the First Amendment’s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and far-reaching contention that the courts should take it upon themselves to “make” a law abridging freedom of the press in the name of equity, presidential power, and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law. See concurring opinion of Mr. Justice DOUGLAS. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in the Nation for all time.

…and the kicker:

The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes – great man and great Chief Justice that he was – when the Court held a man could not be punished for attending a meeting run by Communists.

“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”