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IV. The First Amendment and the press Congress shall make no law . . . Amendment I Congress shall make no law respec4ng an establishment of religion, or prohibi4ng the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to pe44on the government for a redress of grievances. What is the press? 1776 Pennsylvania Evening Post 16 Jan. 1/1 Prosecu4ons have been commenced by the officers of the Crown, apparently for no other purpose than that of silencing the Press. Oxford English Dic<onary: d. With the. Newspapers, journals, and periodical literature collec4vely. Freq. with modifying word.This use of the word appears to have originated in phrases such as the liberty of the press, to write for the press, to silence the press, etc., in which ‘press’ originally had sense 3c, [the prin4ng press] but was gradually taken to mean the products of the prin4ng press. Quota4ons before 18201 reflect the transi4on between these senses. 1661 A. Brome Songs & Other Poems 129 And carefully muzled the mouth of the press, Least the truth should peep through their jugling dress. 1776 Pennsylvania Evening Post 16 Jan. 1/1 Prosecu4ons have been commenced by the officers of the Crown, apparently for no other purpose than that of silencing the Press. 1798 An<-­‐Jacobin 9 July 281/2 For this purpose, the Press was engaged, and almost monopolized in all its branches: Reviews, Registers, Monthly Magazines, and Morning and Evening Prints sprung forth in abundance. 1807 Edinb. Rev. 10 115 Unlimited abuse of private characters is another characteris4c of the American press. James Madison, in a speech to the Con4nental Congress on June 8, 1789, proposed two versions of what eventually became the First Amendment: The people shall not be deprived or abridged of their right to speak, to write, or to publish their sen4ments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consul4ng for their common good, nor from applying to the legislature by pe44ons, or remonstrances for redress of their grievances. and No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. Ques<ons to answer: If a referendum were held today on whether to adopt the First Amendment, do you think it would pass? Polls show that most Americans support free speech in theory, but when asked more specific ques4ons such as “Should Americans be free to advocate socialism?” or “Should newspapers be allowed to publish top secret government documents?” most persons polled are far less willing to support free speech values. How can you explain this? Assess the recent WikiLeaks and Edward Snowden publica4ons in light of the Pentagon Papers case, with par4cular ahen4on to op4ons that the U.S. federal government may have in responding to the press leaks, pursuing those involved in obtaining and leaking the materials, and restric4ng the access of federal employees to already-­‐leaked materials. The First Amendment and leaks: The Pentagon Papers and WikiLeaks Revisi4ng the ques4on we started with: What are First Amendment protec<ons in <mes of na<onal emergency or war? New York Times Company v. United States (1971) In the "Pentagon Papers" case, the U.S. government ahempted to enjoin the New York Times and the Washington Post from publishing classified documents concerning the Vietnam War. The Pentagon Papers were a classified study en4tled United States–Vietnam Rela<ons, 1945–1967: A Study Prepared by the Department of Defense. They were a top-­‐secret United States Department of Defense history of the United States’ poli4cal-­‐military involvement in Vietnam from 1945 to 1967. In February 1971 Daniel Ellsberg, who had been involved in compiling the study, gave 43 of the volumes to the New York Times, which began publishing excerpts on June 13, 1971. The papers “demonstrated, among other things, that the Johnson Administra4on had systema4cally lied, not only to the public but also to Congress, about a subject of transcendent na4onal interest and significance.” William Rehnquist, US Ahorney General, sought an injunc4on against the Times to cease the serial publica4on of the papers. Judge Gurfein of the Second Circuit—it had been his first case—upheld the injunc4on because the government hadn’t had sufficient 4me to prepare a case. Ellsberg gave por4ons of the Pentagon Papers to Washington Post editor Ben Bradlee. the Washington Post began publishing its own series of ar4cles based upon the Pentagon Papers on June 18, 1971. Rehnquist asked the paper to cease publica4on. When it refused, Rehnquist unsuccessfully sought an injunc4on (Judge Gesell, on the DC Circuit Court, had been a reporter before becoming a judge.). Because of the split in the 2 appeals courts, and at the insistence of the lawyers for the Times, who argued that the news had to be published while it was hot, the Supreme Court intervened and began hearing the case on June 26. Fiqeen other newspapers received copies of the study and began publishing it. The Post also gave a copy of the Papers to Sen. Mike Gravel (D-­‐AK). On June 29, Gravel entered 4,100 pages of the Papers into the Congressional Record. He could do this because Art. I, Sec. 6 of the Cons4tu4on provides that “for any Speech or Debate in either House, (a Senator or Representa4ve) shall not be ques4oned in any other Place.” Gravel also had the papers published by Beacon Press in Boston. The immunity of Gravel and his aides was later confirmed by the Supreme Court in the decision Gravel v. United States 408 U.S. 606 (1972), though the publica4on by Beacon Press was not covered by the privilege, and so that was subject to prosecu4on.] Sec. 793(e) of the Espionage Act: whoever having unauthorized possession of, access to, or control over any document, wri4ng, code book, signal book, sketch, photograph, photographic nega4ve, blueprint, plan, map, model, instrument, appliance, or note rela4ng to the na4onal defense, or informa4on rela4ng to the na4onal defense which informa4on the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign na4on, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmihed, or ahempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmihed the same to any person not en4tled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States en4tled to receive it. The government argued that communicates implies publica4on; the Court majority disagreed, finding instead that there is no law barring publica4on. Those who steal top secret documents, or who leak them, may be liable for prosecu4on, but those who publish them in the newspapers are not. Publica4on in book form may be different: the government pursued a case against Beacon Press for publishing the Pentagon Papers, but eventually abandoned it. On June 30, 1971, the Supreme Court decided, 6–3, that the government failed to meet the heavy burden of proof required for prior restraint injunc4on. The nine jus4ces wrote nine opinions disagreeing on significant, substan4ve mahers. The Court majority found that the government's claims that publica4on of the documents would interfere with foreign policy and prolong the war were too specula4ve, and could not overcome the strong presump4on against prior restraint. From the per curiam opinion: Any system of prior restraints of expression comes to this Court bearing a heavy presump4on against its cons4tu4onal validity. Jus4ce Hugo Black’s concurrence takes an absolu4st approach: it is unfortunate that some of my Brethren are apparently willing to hold that the publica4on of news may some4mes be enjoined. Such a holding would make a shambles of the First Amendment. . . . Both the history and language of the First Amendment support the view that the press must be leq free to publish news, whatever the source, without censorship, injunc4ons, or prior restraints. Black con4nues: 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. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. We are asked to hold that despite the First Amendment's empha4c command, the Execu4ve Branch, the Congress, and the Judiciary can make laws enjoining publica4on of current news and abridging freedom of the press in the name of "na4onal security." The guarding of military and diploma4c secrets at the expense of informed representa4ve government provides no real security for our Republic. J. William O. Douglas, concurring, in addi4on to the blanket ban on prior restraint of the First Amendment, There is, moreover, no statute barring the publica4on by the press of the material which the Times and the Post seek to use. Douglas cites the Espionage Act’s specific protec4on of freedom of the press. During Congressional debate on §793 of the Espionage Act, this provision was rejected on First Amendment grounds: During any na4onal emergency resul4ng from a war to which the United States is a party, or from threat of such a war, the President may, by proclama4on, declare the existence of such emergency and, by proclama4on, prohibit the publishing or communica4ng of, or the ahemp4ng to publish or communicate any informa4on rela4ng to the na4onal defense which, in his judgment, is of such character that it is or might be useful to the enemy. In addi4on, Douglas notes that the amended Espionage Act of September 23, 1950, rejects any government censorship of the press. According to § 1 (b), Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Cons4tu4on of the United States and no regula4on shall be promulgated hereunder having that effect. 64 Stat. 987. Although the Espionage Act bars communica<on of the kinds of material contained in the Pentagon Papers, it does not bar their publica<on. Jus4ce William Brennan is another absolu4st here: the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Brennan and others note that any prior restraints can only occur during 4me of war, and that the na<on was not at war in Vietnam—it not being a declared war (only Congress has the power to declare a war, and it never exercised that power in Vietnam). Madison had felt the Execu4ve branch of government was the weakest, and that the First Amendment was necessary to protect the minority from the tyranny of the majority [in the legisla4ve branch]. But here J. Poher Stewart argues that a free press was necessary to confront an increasingly imperial presidency: the only effec4ve restraint upon execu4ve policy and power in the areas of na4onal defense and interna4onal affairs may lie in an enlightened ci4zenry
—in an informed and cri4cal public opinion which alone can here protect the values of democra4c government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people. And Stewart concludes that, though some of the leaked secrets could be dangerous, the danger is not an immediate one, and so publica4on cannot be enjoined: I am convinced that the Execu4ve is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Na4on or its people. And J. Byron White reminds us that there is no law that the Court is being asked to enforce: [nor,] aqer examining the materials the Government characterizes as the most sensi4ve and destruc4ve, can I deny that revela4on of these documents will do substan4al damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not sa4sfied the very heavy burden that it must meet to warrant an injunc4on against publica4on in these cases, at least in the absence of express and appropriately limited congressional authoriza<on for prior restraints in circumstances such as these. J. Thurgood Marshall also notes that there is no law being violated: The issue is whether this Court or the Congress has the power to make law. And he reminds us that although the president can control informa4on and employees, he cannot legislate by injunc4on: The president can declare material secret; and can discipline employees who leak informa4on When Congress specifically declines to make conduct unlawful it is not for this Court to . . . overrule Congress. The dissen4ng jus4ces, Harlan, Blackmun, and CJ Burger, complain that they don’t have enough 4me to consider the issues fully—the case took 3 weeks from incep4on to decision: They ask, will the material released endanger the United States to an extent that warrants prior restraint? Can the Court balance the First Amendment against other parts of the Cons4tu4on—
i.e. from the Government’s brief? the cons4tu4onal power of the President over the conduct of foreign affairs and his authority as Commander-­‐in-­‐Chief. And the Solicitor General’s claim, in oral arguments, that the First Amendment was not intended to make it impossible for the Execu4ve to func4on or to protect the security of the United States. In his dissent, CJ Warren Burger objects to the haste and rejects an absolu4st interpreta4on of the First Amendment: In these cases, the impera4ve of a free and unfehered press comes into collision with another impera4ve, the effec4ve func4oning of a complex modern government and specifically the effec4ve exercise of certain cons4tu4onal powers of the Execu4ve. Only those who view the First Amendment as an absolute in all circumstances—
a view I respect, but reject—can find such cases as these to be simple or easy. WikiLeaks: Because the Pentagon Papers set the highest possible bar against prior restraint of the press, the government now pursues leakers instead of the press. However, the government went aqer leakers in the Pentagon Papers case as well: their pursuit of Daniel Ellsberg, who was the original leaker, and Sen. Mike Gravell (Alaska), who read the papers into the Congressional Record, was eventually dropped. When WikiLeaks disclosed massive amounts of classified and sensi4ve informa4on about the war in Iraq, the government also banned federal employees from reading leaked materials. The Department of Defense issued a warning that Viewing or downloading s4ll classified documents from unclassified government computers creates a security viola4on. Here is the no4ce that the government sent: The recent disclosure of U.S. Government documents by WikiLeaks has resulted in damage to our na4onal security. Federal agencies collec4vely, and each federal employee and contractor individually, are obligated to protect classified informa4on pursuant to all applicable laws, as well as to protect the integrity of government informa4on technology systems. It is a func4on of agency leadership to establish a vigilant climate that underscores the cri4cal importance of the exis4ng prohibi4ons, restric4ons, and requirements regarding the safeguarding of the classified informa4on. Accordingly, agencies are requested immediately to send a no4ce to all agency employees and contractors reminding them of their obliga4ons to safeguard classified informa4on. A model no4ce, for use or adapta4on by each agency, is ahached to this memorandum. Agencies are responsible for communica4ng this no4ce promptly to their employees and contractors. If an agency has a legi4mate need for personnel to access classified informa4on on publicly available websites, the agency head shall ensure that such access is managed in a manner that minimizes risk to government informa4on technology systems and adheres to established requirements. Thank you for your coopera4on and assistance. OMB memo to all government agency heads warning that viewing leaked documents is s4ll a security breach. The Library of Congress enforced a ban against viewing WikiLeaks sites on its computers because, unauthorized disclosures of classified documents do not alter the documents’ classified status or automa4cally result in declassifica4on of the documents. The U.S. Ahorney sought account informa4on on a variety of WikiLeaks suspects including Julian Assange, Pvt. Bradley Manning (who was tried and convicted for leaking the documents, and who has now changed names to Chelsea Manning to beher reflect gender orienta4on), and even a member of the Icelandic Parliament. Twiher, in responding to these requests, issued this statement: to help users protect their rights, it’s our policy to no4fy users about law enforcement and governmental requests for their informa4on, unless we are prevented by law from doing so. Birgiha Jonsdoxr, former WikiLeaks volunteer and a member of the Icelandic Parliament, announces on Twiher that the US has requested informa4on concerning her Twiher account, including banking and credit card informa4on, pursuant to 18 USC 2703. Twiher was bound to secrecy, but that requirement was liqed upon appeal by Twiher. In the latest itera4on of leaking secret government informa4on, Edward Snowden leaked massive amounts of NSA data to the Guardian and the Washington Post, detailing secret warrantless surveillance of the email, telephone, and web use of Americans and foreign na4onals. Snowden eventually fled from Hawaii to Hong Kong to Moscow to avoid arrest and prosecu4on for these leaks. There is no First Amendment in Britain, and the Guardian offices were raided by Bri4sh police who ransacked computers and generally threatened reporters and editors, but the newspaper persisted and ul4mately won a Pulitzer prize for publishing the leaked materials. American newspapers were not pursued by law enforcement—surely a response to the Pentagon Papers precedent. Ques4on: Would Edward Snowden get a fair trial if he returned to the US? Or should he take his chances staying in Russia, a country not known for a free press and with a poor record on human rights? Compare the WikiLeaks and Pentagon Papers cases. Would the Supreme Court, more conserva4ve now than it was in 1971, rule differently on a request for a WikiLeaks injunc4on? How would you argue the case for the government? for the news media and WikiLeaks? What about the “na4onal security” role played by social media like Twiher and Facebook? If you were a Twiher or FB execu4ve, how would you balance the needs of your users with the requirements of na4onal security? * 
IV. The First Amendment today An Illinois State Senator recently proposed SB 1614: The Internet Pos4ng Removal Act. A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless the anonymous poster agrees to ahach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate. All web site administrators shall have a contact number or e-­‐mail address posted for such removal requests clearly visible in any sec4ons where comments are posted. Three recent and controversial First Amendment cases: •  Snyder v. Phelps: Westboro Bap4st Church pickets military funerals to condemn homosexuality; so long as they obey local regula4ons for where and when protests may take place, and they do not disrupt the funeral, the Court refused to ban the display of hate speech at a funeral. •  Brown v. Entertainment Merchants Associa<on: Video games have First Amendment protec4on; therefore a state cannot prohibit sales of violent video games to minors. •  Ci<zens United v. FEC: Corpora4ons enjoy First Amendment protec4on for poli4cal speech; campaign spending is a form of poli4cal speech; hence federal limits on corporate campaign contribu4ons are uncons4tu4onal. Ques<ons: What are the pros and cons of arguing that the best way to defeat or blunt the impact of such speech is to shine the light of day on it, to subject it to discussion in the marketplace of ideas? What happens if, in that give-­‐and-­‐take of public debate, a bad idea actually takes hold? (There are many instances in history where this has happened.)