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Affirmative Governmental Action Affecting
Most of our First Amendment law deals with the negative force of the First Amendment in preventing the government from prohibiting or interfering with freedom of expression. Yet some governmental conduct of a more affirmative nature may also have an impact upon First Amendment rights. Thus, the government may undertake to promote the system of freedom of expression by assisting speakers in their endeavors to communicate, or it may participate in the system itself as a speaker. Along with other governmental functions, these activities of the government have been increasing at an accelerated rate. Obviously, they both confer important benefits and present acute dangers.
First Amendment doctrine concerned with governmental conduct in this area is just beginning to develop. It is likely to become a critical issue for future generations. Some of the problems to be solved are illustrated by the use of government subsidies to finance various forms of expression and by government participation in expression through the operation of school libraries.
Government funding of expression takes place on a widespread scale. It includes giving financial support to public radio and television, providing public money for political candidates, making grants for scientific research, and furnishing financial aid to cultural activities. The principal First Amendment difficulty is that, in carrying out such programs, the government must designate the basic purposes for which public funds are to be made available and it thereby passes judgment on the content of the expression, preferring the subsidized to that not subsidized. Moreover, by the very nature of the relationship, the government is in a position to dictate or influence the message communicated by the beneficiary of the funds. The resolution of this dilemma would seem to rest in part upon developing a distinction between government intervention at the macro level and governmental intervention at the micro level. Thus, the government would be authorized to support expression by selecting a general area for subsidy but prevented from controlling the details of the expression within that area.
A different kind of issue is presented by the government's conduct in maintaining a school library. Questions arise when public officials remove or fail to provide a book because of its ideological content. A persuasive argument can be made that such action violates First Amendment rights. The function of the school, at least above the elementary level, is not only to instill
traditional knowledge in its students but to give them the capacity for critical thought and innovative action. The library is a key institution in this process. The student, who frequently is a captive audience because of the compulsory attendance laws, would appear to have a constitutional right to have access to a broad range of information and ideas. The Supreme Court in its recent decision in the Island Trees School case has indeed recognized such a right.
On the other hand, translation of the theoretical right into a concrete legal remedy is not without difficulty. In building a school library
adding or removing books—the school authorities must necessarily delve into the worth of the information and ideas contained in the material under consideration. By what standard is a court to decide whether this judgment violates the student's constitutional right? For answers the Court must look to concepts of balanced presentation and the professional judg ment of educators as to whether the action of the school officials unduly restricts the space needed by the student for growth and development. Of course, even if the courts can for. mulate a workable standard they could not supervise every decision made by the school authorities. At most they would be able to keep the pertinent constitutional principles alive and apply them in egregious cases.
Affirmative government support of what is essentially a laissez-faire system and participation by the government in that system present a paradox. Government controls are brought into play, but the controls must in turn be controlled. The working out of this dilemma still remains a major task.
To sum up, there is some evidence that ba sic understanding and support for the system of freedom of expression have lost ground in some quarters. There are some weaknesses in the constitutional structure that has evolved from the decisions of the Supreme Court. The claims be ing pressed in the name of national security pose a critical issue; adjustment to the new technology demands an immediate solution; and controls over an active government, seeking to promote and participate in the system, have not yet evolved. Nevertheless, on the whole the First Amendment lives a powerful life. If we can keep basic economic, environmental, and other social conditions from overwhelming us, keep warfare from destroying us, and keep faith in the progress we have made, the symbolic year of 1984 need never arrive.
H. RES. 384
Expressing the sense of the House of Representatives regarding the blackout of press coverage in Grenada.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 18, 1983
Mr. LOWRY of Washington submitted the following resolution; which was referred to the Committee on the Judiciary
Expressing the sense of the House of Representatives regarding the blackout of press coverage in Grenada.,
Whereas the first amendment of the Constitution of the United States provides that the freedom of the press shall not be abridged;
Whereas the United States Government has long been distinguished in the eyes of the world for its promotion and protection of press freedom and the open coverage and vigorous debate of issues and events;
Whereas the United States Government's protection of the freedom of the press has stood in stark contrast to the control of the press by the Government of the Soviet Union;
Whereas the American press corps has covered every military action involving the United States since the time of the American revolution;
Whereas hundreds of American correspondents have lost their lives covering American military activities around the world; Whereas members of the press corps have consistently protected the secrecy of information which could jeopardize sensitive military operations or human lives;
Whereas the citizens in a democratic form of government rely on newspaper, magazine, television, and radio coverage of domestic and international activities of their government to develop informed and intelligent opinions about those activities; and
Whereas all members of the American press were uniformly prohibited by the United States Government from covering firsthand the American military intervention in Grenada: Now, therefore, be it
Resolved, That it is the sense of the House of Repre2 sentatives that the President, executive officers, Congress, 3 and judiciary of the United States should honor and uphold 4 the protections of the press provided by the first amendment 5 of the Constitution of the United States and insure the right 6 of members of the press to bring to the American people 7 complete and uncensored reports of all future nonconfidential 8 military activities of the United States.
H RES 384 IH
I am today releasing the final report of the CJCS Media-
I have directed the Assistant Secretary of Defense (Public
As an added step, I will form a panel of eminent journalists and former war correspondents to advise me on the best ways to meet these objectives. This group will become a permanent Secretary of Defense Media Advisory Committee. By forming such a committee, I wish to ensure that the media's viewpoint can be expressed in our highest councils on a continuing basis.
I firmly believe that relations between members of the armed forces and members of the press will be greatly enhanced by continued, strengthened, and informed dialogue. As part of instilling a better understanding on our part of the problems and responsibilities of the press in connection with our armed forces in times of crisis or conflict, as well as in peacetime, I have already directed a review of the adequacy of instruction on relations between the press and armed services at all levels of our military educational system.
I greatly appreciate the work done by General Sidle and the
General John W. Vessey, Jr.
Dear General Vessey:
As you requested, enclosed are the final report and recommendations of the Sidle Panel, together with pertinent enclosures. The panel is unanimous in its strong belief that implementation of the recommendations, both in fact and in spirit, by the appropriate military authorities will set the stage for arriving at workable solutions for media-military relations in future military operations. We also believe that these solutions will be satisfactory to reasonable members of both the media and the military.
The report has three sections: an introduction, a recommendations section, and a comment section. We adopted this format because, while we were unanimous on the recommendations, there were some differences of opinion on some points in the comments. However, we all agreed that the comments were necessary to help explain the recommendations and that even the points on which we were not unanimous were worthy of consideration as suggestions and background for those who will implement the recommendations, should they be implemented. In any case, the entire panel has formally endorsed the recommendations, while I signed the comments. I should add that, where appropriate, I have mentioned the panel's degree of support in the comments.
The panel asked that I put three points in this letter that were not exactly germane to the report but required some comment on our part.
First, the matter of so-called First Amendment rights. This is an extremely gray area and the panel felt that it was a matter for the legal profession and the courts and that we were not qualified to provide a judgment. We felt justified in setting aside the issue, as we unanimously agreed at the outset that the U.S. media should cover U.S. military operations to the maximum degree possible consistent with mission security and the safety of U.S. forces.