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cisions of this Court, however, have unequivocally reaffirmed...that
it is the province and duty of the judicial branch to say what the law
is.... We conclude that... the [President's] generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in
a pending criminal trial.

But the rule of law has little force if the law can always be bent by claims of necessity. Another passage from Burger's opinion in the tapes case is a reminder that the consensus about Nixon's abuses of power never touched his claims about the necessities of national security. How much deference should be accorded to presidential definitions of national security? The view of the Court is that few questions should be asked of a president when he claims to be acting in this area.

The President does not place his claim of privilege on the ground that
[the tapes] are military or diplomatic secrets. As to these areas...the
courts have traditionally shown the utmost deference to presidential

National security is a ubiquitous concept that presidents have frequently invoked over the last three decades to insulate their actions from review. The law has not only been inadequate as a safeguard against overreaching claims of national security; it has become, especially since the Nixon presidency, a source of legitimacy for the view that definitions of national security should be left to the discretion of the executive branch. Over the last eight years the courts and the Congress have increasingly been drawn into the conflict between security and liberty, but instead of defining and narrowing security claims by the executive branch, they have often ratified executive practices and insured them against legal challenge.

The ultimate effect of much law in this area has been to authorize discretion and flexibility in the management of security practices. The result is that today we have greater secrecy, more censorship, a CIA with more domestic authority, an FBI with fewer restraints, and a National Security Agency with broader power than we have ever had in our history. And all of these developments have taken place under a new system of law that has grown up in the shadow of the Nixon presidency, after we thought we had struck down the abuses that produced Watergate. Ten years later, most Americans are not aware of this continued erosion of their individual liberties in the name of a dangerously expanding concept of national security.

What is most remarkable about all this is that we have drifted into a state of permanent emergency that has no immediate contest. We do not know what the emergency is or how long it will last. We do not even have a clear understanding of its impact on our system of liberty, since we have been conditioned to accept


the view that the rule of law often requires individual liberty to yield to claims of security under certain limited circumstances. In fact, we do not even think of ourselves as living in a state of emergency. On the contrary, we believe that a general suspension of liberty happens only in other countries and could never happen here.

Take a typical example close to home. On October 16, 1970, Prime Minister Pierre Elliott Trudeau went on Canadian national television and declared a “state of insurrection" throughout Canada, based on the kidnapping of a Canadian minister and a British consul by Quebec separatists. Trudeau invoked the Canadian War Measures Act and authorized the national police to conduct predawn roundups of French Canadians suspected of associating with the separatists. Trudeau's emergency decree had the effect of temporarily suspending the Canadian Bill of Rights.

Could it happen here? Probably not the way it happened in Canada. We are not likely to experience such a dramatic announcement and clear suspension of the Constitution in a time of similar crisis. Why not? Because our law of national security is flexible enough to accommodate almost any necessity. A decade ago, the Nixon administration was already able to devise methods of coping with similar emergencies without formally suspending the Constitution. In 1971 Nixon's second attorney general, Richard Kleindienst, commented on Trudeau's declaration of emergency by stating:

It could not happen here under any circumstances. We wouldn't sus-
pend the Bill of Rights even if the whole Cabinet, the Chief Justice and
the Speaker of the House were kidnapped.... We wouldn't have to be-
cause our existing laws-together with our surveillance and intelligence
apparatus, which is the best in the world-are sufficient to cope with
any situation.... There is enough play at the joints of our... law,
enough flexibility, so that if we really felt that we had to pick up leaders
of a violent uprising, we could. We would find something to charge
them with and we would hold them that way for a while.

That, of course, is exactly what the Nixon Justice Department did when it unceremoniously rounded up 12,000 people in the streets of Washington, D.C., during the May Day antiwar demonstrations in 1971. Although these mass arrests were later condemned by federal courts as unconstitutional, they were an awesome display of informal executive power to define and declare emergencies and suspend the Constitution. Comparing the Canadian and American approaches to national security, the Canadian Attorney General, John Turner, made a wry comment after Trudeau lifted his emergency decree:

In a certain sense, it is a credit to the civil liberties of a country that it
has to invoke extraordinary powers to cope with a real emergency. Some


countries have these powers at their disposal all the time.

Is the United States becoming such a country? Without clearly defining what we mean by national security, we have turned it into a talisman to ward off any evil that might befall us as a nation. It is disturbing, but not surprising, therefore, that the current administration has turned the CIA loose to spy on Americans and conduct “covert actions” inside the U.S.; created a presumption that all government information about foreign or military affairs can be withheld from the public; pardoned FBI officials who supervised criminal burglaries as heroes in a war against terrorism; mounted a campaign for official censorship of scientific research; and accused the critics of its foreign policy of promoting Soviet propaganda.

There is a simple question that we must ask ourselves as we look at these recent developments and the long history of national security maneuvers that preceded them: where does the Constitution fit in? National security is what protects us from our adversaries, but the Constitution and the Bill of Rights are what distinguish us from them. The question, of course, is not just one of law. We must decide what we mean by national security and whether its protection should be allowed to blur our principal distinguishing features as a nation. “Liberty lies in the hearts of men," Judge Learned Hand said in a famous speech delivered during a time of grave national danger, in 1943. "When it dies there, no constitution, no law, no court can save it." Judge Hand's speech echoed the warnings of the drafters of the Bill of Rights that, in the words of Thomas Paine, "those who expect to reap the blessings of freedom must always undergo the fatigue of supporting it."

John Shattuck is national legislative director of the American Civil Liberties Union and head of its Washington Office. This article is reprinted by permission from the Winter 1983 issue of democracy, “a journal of political renewal and radical change."

Reproning 1984

Profess Emerson. Lines Professor Emeritus of Law at Yale, delivered these remarks when he accepted the First Amendment Defender Award presented to him in December 1983 by the Institute for Communications Law Studies of the Catholic University School of Law in recognition of his lifelong efforts to preserve and strengthen First Amendment protec tions. The remarks were published in Communications Lawyer (Winter 1984) and are reprinted here with permission.

Faculty Opinion

In addition to being the first recipient of
the First Amendment Defender Award from the
Institute of Communications Law Studies, Mr.
Emerson has recently received two other dis-
tinguished awards. The American Civil Liber-
ties Union has awarded Mr. Emerson the first
ACLU Medal of Liberty for distinguished life-
time service to the cause of civil liberties. The
ACLU hopes the Medal will come to represent
the pinnacle of achievement for those dedicated
to the grand purposes of the Bill of Rights. It
is the only award the national ACLU confers.
Secondly, the Connecticut Bar Association has
honored Mr. Emerson with the 1984 Distin
guished Public Service Award for "excercising
freedom of expression in the cause of everyone's
freedom of expression."

The State of the First Amendment
As We Enter "1984"

Thomas I. Emerson

When the First Amendment became a part of the Constitution in 1791 the scope and implications of that provision were by no means clear. Its fundamental purpose was to support the principles of an open and self-governing society. More specifically, it was intended to protect speakers who criticized the government, to forbid censorship of the press, and to permit assemblies in the public halls or demonstrations on the streets. But many questions remained unanswered, such as its effect upon the law of seditious libel, private libel, blasphemy, obscenity, and advocacy of law violation. Even the issue of who was protected by its terms was not beyond dispute. Moreover, the guarantee did not apply to the states. Thus the First Amendment had a vast potential-it was indeed a daring innovation-but its future was uncertain.

For well over 100 years there was little or no development by the courts of First Amendment doctrine. Some right to freedom of expression existed in practice. But the right was subject to frequent infringement, including prosecutions under the Alien and Sedition Acts, molestation of abolitionists, and disruption of IWW meetings. Yet not until World War I did the issues come before the Supreme Court in a serious way. And not until 1925 was the First Amendment made applicable to the states, where most of the abridgements of the right of free expression were occurring.

In the last five or six decades, however, there has been a tremendous development of First Amendment law. Fortunately, the Supreme Court and other courts, despite some argument to the contrary, have interpreted the First Amendment as part of a living constitution.


They have broadly accepted the basic principles embodied in the First Amendment and carried the application of those principles far beyond the immediate areas the framers apparently had in mind. The result has been the creation of a constitutional structure that supports a relatively strong system of freedom of expression. That system, flawed as it is in many respects, has had a global impact and constitutes a major contribution to the progress of humankind.

Partly as a result of the First Amendment and its accompanying body of law, George Orwell's 1984 has not come to pass in the United States. Nevertheless, serious dangers to the system exist and difficult problems remain to be solved. In appraising these dangers it is necessary to explore, in general terms, the extent to which a basic understanding of the First Amendment prevails in our society and the way in which the supporting constitutional doctrines have been developing. It is also important to take note, albeit very briefly, of some of the specific problems that currently require solu


Basic Understanding of the First Amendment

Creation of a healthy system of freedom of expression under the First Amendment does not come without travail. As Justice Holmes has said, majorities are prone to sweep away all opposition." Governments strongly prefer acquiescence to dissent. The long-term benefits of tolerating the views of others are often not immediately apparent. The system, in short, is a


sophisticated one, requiring the education and reeducation of each generation. Ultimately it rests upon a sensitive understanding of the principles at work and a firm commitment to their support.

There are signs in the land that this essential understanding and support is slackening in some quarters. Three areas of concern stand out.

First, the current Administration, from the highest levels on down, has taken a series of actions that can only be premised upon ignorance of, or wanton disregard for, First Amendment values. Thus, although the Freedom of Information Act has been one of the major advances in the democratic process over the past several decades, the Administration has proposed weakening amendments that would drastically curtail its capacity to give the American people information they need to know. The Administration has also denied visas to important foreign visitors, apparently on the theory that their ideas are too dangerous for the American people to hear. It has revived the Foreign Agents Regis tration Act to require that two Canadian films, one on acid rain and the other on nuclear energy, be labelled "political propaganda"; the point seems to be that the American people must have fatherly advice in order to evaluate materials emanating from foreign sources. In the area of political surveillance, the Adminis tration, despite past disclosures of glaring abuse by the intelligence agencies, has not only failed to bring the intelligence agencies under statutory control, but by executive order and revision of the attorney general's guidelines has sought to undo even the feeble reforms instigated by the prior Administration. And, contrary to past practice, the Administration excluded the press from Grenada during the invasion, thereby leaving the American people without any independent source of information on what was taking place.

The failure of the current Administration to comprehend the elementary principles of the First Amendment is revealed most starkly by its efforts to control the dissemination of scientific information on national security grounds. While secrecy on some matters affecting national security is essential, the Administration has gone much beyond reasonable precautions. Using the export control laws it has imposed far-reaching restrictions on the teaching and research activities of American universities and scientists. Thus, it has undertaken to control the publication of research materials, even where they do not deal with classified information, to monitor the study of foreign students in American universities, and generally to hinder communication between American and foreign scientists. One example of the Administration's 16

activities occurred in August of last year when, at a conference in San Diego of 2,700 photooptical engineers, the Department of Defense blocked the presentation of 100 papers containing nonclassified information. The Administration seems totally unaware that the scientific method itself-the hope for scientific progress -depends on full freedom of inquiry, the exposure of fact and theory to testing and criticism, building upon the knowledge uncovered by others, and an atmosphere of open dialogue. The Administration's guiding philosophy, to the contrary, leads straight to "1984."

A second area of weakness in the basic un

derstanding essential to a vigorous First Amendment involves what has been called the "pollution" of the market place of ideas. The system of freedom of expression has always operated in a somewhat rowdy fashion. Much that is said is false or misleading, impugns the motives of the opposition, is intemperate, or appeals to prejudice rather than reason. It is not the province of the government to attempt to purify the process. That could only be done at the price of destroying the system altogether.

Nevertheless, participants in the system do have a moral and political responsibility. Surely there is some obligation to maintain and improve the quality of the debate. Above all it is vital that all of us learn from the mistakes of the past; there should be no need to repeat the blunders of McCarthyism. Hence one must always hope that the content of the system will become more meaningful and more useful to society as a whole.

Unfortunately this does not seem to be hap pening. Indeed there are ominous signs of contrary trends. Traditionalist forces in the nation, basically opposed to innovation and diversity, have become more articulate, better organized, and politically more powerful. And their area of attention has moved from social issues-the

family and religion-to questions of military and foreign policy. Their participation in the system is welcome, but their mode of operation has tended to undermine the First Amendment in at least two ways.

One is that expression of their particular point of view tends to be accompanied by attempts to suppress the viewpoints of others. As Justice Douglas once said, they "demand conformity or else." This attitude has found expression, for instance, in the efforts to ban books from libraries and schools. Considerable evidence points to the conclusion that the bookbanning phenomenon has reached alarming proportions. Thus, last year, according to the Office for Intellectual Freedom of the American Library Association, more than 50 percent of high school libraries responding to a national

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