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survey reported some form of censorship pressure. And a recent study by People for the American Way concluded that censorship efforts have been steadily increasing, with "secular humanism" the most frequent target of the attacks. Book banning is, of course, the essence of "1984."
The other danger to the First Amendment arises from the practice of substituting for a discussion on the merits an attack upon motives or an appeal to fear or prejudice. This mode of exercising First Amendment rights takes the form of questioning the integrity of the opposition, attributing its information or ideas to for. egn or other sinister sources, suggesting hidden agendas, proclaiming guilt by association, and generally equating opposition to official policy with disloyalty or even treason. Examples of this approach are seen in much of the response to the nuclear freeze movement, the attack upon the National Council of Churches, and the campaign against the Institute for Policy Studies. In all these cases the very real substantive issues raised by the groups involved were not faced and the public was deprived of an opportunity for national debate.
A third concern with the basic support for the First Amendment in contemporary society arises out of some backsliding on the intellectual front, particularly among some constitutional experts. The attempt by the academic community to formulate rules of law that will give realistic protection to First Amendment rights has not moved forward. On the contrary, theories of limitation are being advanced in some quarters. Thus, proposals to restrict cov erage of the First Amendment to "political expression," that is, participation in the affairs of government, are still being pressed. Ideas for downgrading the importance of the rule against prior restraint are being put forward. And arguments that time, place, and manner restrictions are permissible, so long as the regulation is "content neutral," are being urged. One is, of course, not entitled to ask the legal academic community to accept any one approach to strengthening the First Amendment. But a less constrained, and more generous, attitude to ward the problem might not be out of place.
The Supporting Constitutional Framework as
Under our system of government we rely heavily upon the courts, topped by the Supreme Court, to create and maintain a legal structure that will make the protection of First Amendment rights a reality. We count on our judicial institutions to expound the principles, to formulate the doctrines, to apply the rules in new
situations, and generally to enforce the guarantees of the First Amendment against legislative, executive, or popular pressures. The fashioning of an effective body of up-to-date law is a matter of supreme importance in the fortunes of the First Amendment.
In general the Supreme Court has accepted the basic values that underlie the First Amendment and has recognized the functions it was meant to serve in our society. Moreover, in the years since World War I the Court has constructed a substantial set of legal rules, derived from those values and functions, that give solid life to the constitutional guarantee. Yet the dream of a comprehensive and tight-fitting constitutional structure has not been realized. Not only do important differences of opinion persist among the justices, but the rules remain loose and a gradual dilution of doctrine seems to be taking place.
The most fundamental tenet of First Amendment law is that speech or expression, as distinct from other conduct, occupies a special position in our hierarchy of values and titled to special legal protection. In other words, in constitutional adjudication speech or expression must be given a "preferred position." The right to freedom of expression cannot simply be balanced away by being made subordinate to other governmental interests. Rather, the other interests must fit within a structure that protects expression, that is, be achieved by means that do not deny or abridge freedom of speech. Although this is the starting point of First Amendment analysis the Supreme Court has wavered on the matter. It has never flatly repudiated the principle, but more and more it has ceased to pay attention to it. Certain of the justices, and sometimes a majority, treat First Amendment rights as merely of passing concern, readily subordinated to any other substantial governmental interest. The special place accorded freedom of expression in our constitutional law seems to be diminishing.
A second fundamental tenet of First Amendment law is that freedom of speech extends to all forms of expression, whether political, academic, artistic or other, and that expression is protected regardless of content, whether racist, sexist, totalitarian, or other. Here the Supreme Court has held firm. It has refused to limit the First Amendment to "political speech" and, in the Skokie case, it made clear that even racist speech of the most vitriolic kind came within the protection of the First Amendment.
Beyond this, however, the Supreme Court has not advanced very far in defining just what is expression, and hence entitled to constitu
tional protection, and what is non-speech or action and not covered by the First Amendment. The Court still adheres to the fiction that obscenity is not expression. It has not found any technique for determining when symbolic speech comes within the purview of the First
Amendment. And it has not succeeded in drawing a satisfactory line between militant advocacy and violent action. Hence the question of what conduct is protected by the First Amendment has been left in a state of ambiguity. The result is that expression and action tend to be merged in the Court's analysis and the protection given expression does not rise above that afforded
other forms of conduct.
Once having determined that certain conduct is expression within the ambit of the First Amendment, the further question is what degree of protection is constitutionally required. Apart from the advocacy cases, where a test combining clear and present danger and incite ment is employed, the Supreme Court relies principally upon the balancing test, attempting to weigh First Amendment values against other interests. The objections to the balancing test have been recounted many times. The difficulties include the fact that there are no comparable factors to weigh against each other, that the formula is so unstructured as to lead to any result, and that the court tends ultimately to look mainly to the government interest involved and ignore the preferred position which ought to be accorded expression. In addition, as the Supreme Court continues to expand its balancing techniques it has come to weigh in the balance
various factors with which the government, under First Amendment theory, ought not to concern itself. Thus the Court has taken to considering the relative value of different forms and different contents of speech, trying to measure the extent of the abridgement of expression caused by the government's action, and permitting a greater degree of government control where other modes of expression are available to the speaker. In utilizing factors of this sort in the balancing process the Court is permitting the government to make judgments as to the social value of different kinds of expressionmatters which should not be the business of the government at all.
On another front, the doctrine of prior restraint has been losing some of its force. The Supreme Court still recognizes the drastic impact of advance censorship and the unique character of a prior restraint. But a majority of the Court has been unwilling to formulate general rules forbidding such controls. The result is that the existence of an invalid prior restraint is determined on an ad hoc basis in each case. And the courts have not been adverse to imposing a mination can be made. This is what happened temporary prior restraint until the final deterin the Progressive magazine case, where a prohibition against publication was in effect for nearly seven months until the ultimate issue was
novative doctrine in the First Amendment area. Nor has the Supreme Court sponsored inDespite the fact that many individuals and groups lack access to the means of communication, the Court has done little or nothing to solve this problem. In fact, on the whole it has narrowed the right of access rather than expanded it. And, although the Court has acknowledged the existence of a public right to substantial way. know, it has not developed this doctrine in any
All in all it can be said that the Supreme Court has maintained a significant body of law supporting the First Amendment. But there are loopholes, ambiguities, and other serious weak
nesses in the system. It is by no means sure that
a sufficiently hard-shelled structure has been developed to withstand the pressures of a crisis.
Nor has the Court moved forward to deal with some of the upcoming problems engendered by the times.
The First Amendment and National Security
Of the specific First Amendment problems confronting the nation on the eve of 1984, perhaps the most significant, and certainly the most urgent, is the reconciliation of national security interests with the principles of the First Amendment. The issues are complex and troublesome.
Preservation of national security is, of course, a basic need of any society. Appeals in the name of national security arouse the kind of popular response that tends to "sweep away" all other considerations. The secrecy surrounding most national security claims makes it difficult for the public to obtain the full facts. Yet, if we are to remain a democratic country we must find a way to fit national security concerns into our system of individual rights.
The tightening circle of government restrictions upon freedom of expression, imposed as requirements of national security, has been described by many observers. Some of these measures have been noted above. One more, which dramatically illustrates the direction in which we are traveling, may be added.
On March 11, 1988, the President issued a Directive on Safeguarding National Security Information. This directive, as implemented by Department of Justice regulations, provides that all persons with access to classified information must sign an agreement that they will never disclose classified or classifiable information related to their government employment. In the case of persons with authorized access to special, so-called Sensitive Compartmented Information, estimated at over 100,000 government employ ees, the agreement would require also that they submit all future writings related to their government employment, including works of fiction, to the agency for its approval before publication. All classified or classifiable information to which access is made available "is now and will forever remain the property of the United States Government." The agreements are to be enforceable in a civil action for injunction, damages or other relief. In addition the directive instructs every government agency to adopt regulations providing that its employees may be required to submit to polygraph examinations in the course of any investigation of the unauthorized disclosure of classified information. The FBI is given jurisdiction to investigate unauthorized disclosures even when no criminal prosecution is anticipated.
The restrictions imposed by the directive would drastically curtail the flow of information concerning government policies and activities. They would, for example, require a former secretary of state writing his memoirs to submit the manuscript for advance approval by the current secretary of state. It is not too much to say that implementation of the directive, which has been temporarily held up by congressional action, would substantially change the balance of power between the government and the citi zenry. Obviously, these developments raise serious First Amendment issues. Before examining the
recent Supreme Court decisions in the national security area, however, it is important to sketch the broader constitutional landscape.
The starting point is that governmental efforts to achieve national security, like the exercise of all other government powers, must operate within the constitutional structure. More specifically, the goal of national security must be sought by methods that do not infringe First Amendment rights. The government has increasingly contended otherwise. But that position has been consistently rejected by the Supreme Court. Thus, when President Truman attempted to take over the steel mills during the Korean War, on the ground that seizure was necessary to our national defense, the Court ruled that "we cannot with faithfulness to our constitutional system" uphold such action. In New York Times v. United States the Court refused to grant an injunction against publication of the Pentagon Papers even though the government claimed it would cause "grave and irreparable injury" to national security. And in United States v. United States District Court, decided in 1972, the Court rejected the government's claim that the Fourth Amendment did not apply to wiretapping in domestic security cases. "We recognize the constitutional basis of the President's domestic security role," said a unanimous Court, "but we think it must be exercised in a manner compatible with the Fourth Amendment."
It must be recognized, of course, that national security considerations continue to play a significant role in constitutional adjudication. In the application of constitutional limitations national security factors are frequently relevant. A strong argument can be made for the proposition that, in certain kinds of cases, national security factors can never justify infringement on freedom of expression. Thus in most cases of prior restraint, in cases involving the suppression of information in the public domain, and in cases of political surveillance not related to law enforcement, the First Amendment should automatically carry the day. The Supreme Court has not, however, taken this road. In place of giving the full protection of the First Amendment it has adopted a balancing test. Furthermore, there are some situations, such as control over expression by government employees, where full protection is not possible and resort to balancing becomes necessary.
In any event, by balancing or otherwise, the courts retain substantial leeway to determine whether government efforts to achieve national security conform to constitutional limitations. In that contest between national security and First Amendment rights, the cause of freedom of expression tends to be subordinated. The
heaviest pressures seem to be on the side of national security, and individual rights are too readily balanced away. Under these circumstances a resolution of the issues that gives adequate weight to First Amendment values can be achieved only if the courts adhere to certain equalizing rules. These rules may be stated as follows:
1. Constitutional principles protecting freedom of expression occupy a preferred position in the hierarchy of democratic values; hence, there is a presumption in favor of the constitutional right.
2. Government claims of injury to national security must be viewed with a healthy skepticism.
3. The burden of proof to demonstrate its case for limitation rests upon the government.
4. The government must show a direct, immediate, grave, and specific harm to national security, not just a vague or speculative threat.
5. The restriction sought by the govern ment must be confined to the narrowest possible constraint necessary to achieve the goal, and should not be permitted where methods having a less drastic effect upon First Amendment rights are available.
6. Wherever possible, hard and fast rules, rather than loose balancing tests, should be formulated and applied.
Unfortunately the Supreme Court has not accepted this approach and its recent record in First Amendment-national security cases gives cause for alarm. In the Pentagon Papers case the Court was unable to produce a majority opinion, but the least common denominator of six of the opinions rendered would seem to be that the government could enjoin the publication of information whenever it is shown that dissemination of such information would cause a "direct, immediate, and irreparable damage to our Nation or its people," regardless of the extent of the injury or its impact upon freedom of expression. Moreover, a prior restraint can be imposed while that issue is being determined. In Laird v. Tatum the Court ruled that a wideranging program of political surveillance by Army Intelligence caused only a "subjective chill," insufficient to give the targets of the surveillance standing to challenge the government's action. In Snepp v. United States the Court upheld a CIA prepublication secrecy agreement against a former employee who had published a book critical of the CIA even though the book was not alleged to contain any classified information. The Court did not bother to wait for briefs on the merits or to hear oral argument. It treated the prepublication agreement as if it were nothing more than a private contract not raising any issue of the public's right to know.
And it dealt with the First Amendment only in a casual footnote, saying that the agreement exacted of Snepp was "a reasonable means" of protecting a compelling interest. Finally, in Haig v. Agee the Court approved a State Department regulation that authorized withdrawal of a passport where the activities of an American citizen abroad "are causing or are likely to cause serious damage to the national security or the foreign policy of the United States." "Matters intimately related to foreign policy and national security," declared a majority of the Court, "are rarely proper subjects for judicial intervention."
Thus, the Supreme Court, far from adopting a set of principles that would give the First Amendment a fighting chance against assertions of national security, has come close to abandoning the effort to assure that constitutional liberties will be taken into account. There is real danger that First Amendment rights will be overwhelmed by national security demands. Such a result need not be. Past experience shows that the dangers to national security from freedom of expression have been vastly overdrawn and that a democratic accommodation can be made. Our traditions also tell us that it is futile to search for total security. National security achieved at the sacrifice of our system of individual rights is not national security in any true
The First Amendment and the Changing
A second major problem for the First Amendment or rather series of problemsarises out of the vast changes taking place in the technology of communication. When the First Amendment was drafted at the end of the eighteenth century the chief form of expression consisted of the printed press, meetings, demonstrations, and the like. During the course of this century radio and television came to play a prominent role. At the present time the system of freedom of expression is being revolutionized by the development of radically new modes of communication. These include cable television, satellites, microwaves, optical fibers, computers, facsimile, videotapes, and many similar devices. Two aspects of this new technology are of paramount importance for the future of the First Amendment. One concerns the breakdown of the traditional differences in First Amendment law between the print media and the electronic media. The other is the potential for wider access, by diverse individuals and groups, to the mass media.
As First Amendment law has developed there has emerged a significant difference in the degree of governmental control allowed over
the traditional print media and the newer electronic media. The older forms of communication enjoy, at least in theory, a somewhat higher degree of protection from governmental interference. Restrictions upon the content of the communication, with some exceptions for libel, obscenity, advocacy of law violation, and the like, are forbidden. Time, place, and manner controls are limited, by and large, to those necessary to provide physical accommodation for competing interests. Special procedural doctrines, such as the rule against prior restraint, are applied with some degree of firmness. All in all the print media are constitutionally wellentrenched.
The same does not apply, at least to the same degree, to the electronic media. There the physical scarcity of channels through which to communicate has led to greater government controls. Thus, despite the rule against prior restraint, no radio or television station can operate without first obtaining a license from the government. Some control over content is permitted. A broadcasting station must operate in "the public interest"; various limitations on ownership are imposed, such as prohibition against cross-ownership of newspapers and television stations; broadcasters must comply with the fairness doctrine and grant equal time to candidates for election. Furthermore, in the Pacifica case the Supreme Court upheld restrictions on the use of "offensive" language by broadcasting stations, resting its decision in part upon the special capacity of radio and television signals to enter the home.
One impact of the revolution in technology is a merging of the print and electronic modes of communication. Thus a facsimile newspaper may be sent into the home by electronic means. Access to information in a computer is in many ways similar to access to a library. The question has been raised as to whether, under these circumstances, the First Amendment law applicable to the print media or that applicable to the electronic media will be applied to the emerging modes of communication. In the former case government power over the media would be substantially more limited than in the latter
It is impossible to foresee how these matters will turn out. On the face of it, however, it would appear that the grounds for invoking First Amendment electronic law-the scarcity of physical facilities for communication-will largely disappear as a consequence of the new technology. If this be true, then First Amendment principles would certainly restrict governmental intervention in the system to matters of engineering and measures to limit monopoly.
Unless the Pacifica theory prevails, and electronic communication is held to possess a unique character, the result should be enhanced, not diminished, First Amendment rights.
The other feature of the modern technol. ogy is that it creates the physical facilities for virtually unlimited access to the means of communication. Thus, in place of the relatively few channels available for traditional television broadcasting, cable television allows a hundred programs to be broadcast simultaneously over a single wire. Whether this potential for expanding the volume and diversity of expression is realized in practice is one of the urgent open questions of the day. Increased exercise of First Amendment rights will not come about automatically. Positive steps to achieve that result will have to be taken. Thus, legal doctrines to govern the new situation will need to be formulated. For example, common carrier concepts, by which the instruments for communication can be available to all who pay a reasonable cost, have to be modernized. The actual measures necessary to assure that the new potential for expanded communication materializes fall within the province of the legislative and executive branches of government. The courts, however, retain the function of guiding and channeling these measures within the bounda ries of the Constitution. The outcome of this process will in large measure determine how effectively the First Amendment will operate in the new technological world.