Cost of Free Speech

By Travis Hearne

Wartime administrations, both Republican and Democratic, have consistently blemished records when it comes to civil rights. Every American war – from the American Civil War to the current war in Iraq – has seen at best a curtailing, at worst a flagrant violation, of some aspect of domestic civil rights. A fragile tension between national security and civil liberty has always existed in the United States– a country whose citizens and politicians can never agree on the correct priority of these values. The conflict is fundamental and universal: what constitutional freedoms may a government deny its citizens in the interest of winning a war? Freedoms of speech and of the press have historically been two of the first to be sacrificed on the altar of domestic security, and recent events surrounding major news outlets have once again channeled debate toward these topics and prompted Americans to begin asking crucial questions.

In December 2005, the New York Times released a series of articles exposing a widespread surveillance program conducted by the National Security Agency and approved by the President. What made this program so controversial was that it bypassed legal mandates requiring court approval for domestic spying. The administration – already the target of many civil libertarians’ ire for its support of the contentious Patriot Act, a piece of legislation believed by many to violate the basic rights of Americans – has reacted quickly. Justice Department officials, with the blessing of the President, are investigating the possibility of prosecuting Times journalists under the rarely-invoked Espionage Act of 1917.

The Espionage Act broadly allows for prosecution of anyone who publishes or otherwise communicates classified information relating to intelligence activities of the United States’ government. White House officials contend that the information released by the Times comprises a threat to national security as it broadcasts information that might potentially assist terrorists. This raises two major issues for Americans. First, what information can the government legitimately consider classified? Second, should the press be able to expose illegal activities of government officials even if these activities are classified? The Espionage Act relies on an essentially arbitrary definition; the government has a great deal of leeway concerning what information it may define as classified. This gives the administration a nearly universal trump card in that it may classify almost any information for almost any reason and effectively prevent media outlets from publishing anything not approved by the state. At the same time, certain information, were it to fall into the wrong hands, might gravely threaten the safety and well-being of American citizens or military personnel. This dilemma deserves a prominent place in national political debate as Americans must be protected from international threats while government must simultaneously be held accountable for its actions and prevented from overstepping its constitutional bounds.

The press is in a unique position relative to the government, a position that pits the ingenuity of reporters against the wiles of politicians. The American public loves a good scandal, especially a scandal exposing wrongdoing on the part of government officials. This gives media outlets a strong economic incentive to dig as deeply as possible into the operations of the government to uncover illegal activities or activities that undermine civil liberties. If this position is compromised by zealous prosecution of reporters who expose classified information, a critical check on state power is lost. It is obvious that the framers of the Constitution understood the importance of a free press in a successful democracy; they provided for a free press in the Bill of Rights. As famous journalist Alan Barth describes it, “The men who established the American Republic sought censorship of government by the press rather than censorship of the press by the government.” Therefore, it is critical that the government’s power to prosecute civilian journalists be strictly limited.

It is very difficult to devise a clear standard that both preserves freedom of the press and allows the government to take appropriate legal action when American lives are at stake. The American political system is based on a system of checks and balances – not just among the branches of government, but also between the government and its citizens. The framers of the Constitution understood lord Acton’s admonition that “absolute power corrupts absolutely.” However, journalists must be held accountable for what they choose to divulge if it truly endangers our security. Each American must reflect seriously on this critical issue as policy decisions affect both our inalienable civil rights and the safety and security we treasure.