Essay by Keith Werhan
As a society, we are still experiencing post-9/11 trauma. It is impossible, I believe, to predict with certainty the relative balance between individual liberty and collective security that we will have struck when we finally, mercifully leave this period behind. But we have enough distance from 9/11 to begin assessing this societal work in progress.
Have we reached—or are we on the verge of reaching—a First Amendment tipping point in post-9/11 America? With respect to freedom of speech, it seems to me that the answer is, “no.” I do not mean to suggest the absence of problematic restrictions on freedom of speech since 9/11 in the interest of security concerns. But I do not see us even approaching the wholesale evisceration of free speech rights that America experienced during the national security crises of the First World War and the two Red Scares of the twentieth century.
One reason for the relative security of free speech rights, I believe, is the strength of contemporary free speech doctrine. Learning from our history, the Court, beginning in the 1960s, put into place a system of fairly clear and highly protective doctrinal rules that make almost unthinkable the kind of overt censorship that had flourished during our past times of stress.
I find the picture far cloudier regarding freedom of the press, however. This is because, I shall argue, free press doctrine has not been strengthened to nearly the same degree as free speech doctrine. While the Court has recognized a seemingly strong First Amendment right of the press to publish truthful information on matters of public concern, the scope of the right to publish classified national security information remains unsettled. Moreover, the Court has resisted calls to protect press freedoms beyond the core right to publish. Although the Justices have recognized a host of ancillary First Amendment rights to facilitate free speech (for example, freedom of association, which the Court, not the drafters, slipped into the First Amendment, and the right of speaker access to the so-called “public forum”), they have rejected the press's claims to similar auxiliary rights, most prominently, the right of journalists to gather the news that the press is expected to publish.
There have been warning signs in the post-9/11 environment that the Court's failure to accept an auxiliary right of the press to gather the news may undermine the press's right to publish the news. The primary battleground is over the claimed right of the press to publish national security secrets that have been illegally leaked to journalists by government employees. A related skirmish involves the claimed right of journalists to maintain the confidentiality of their news sources, in this context, government employees who leak classified information. This still inchoate conflict between the federal government and the press promises to create a defining moment for the meaning and vitality of the First Amendment's protection of freedom of the press at a time when we most need a free press, and when press freedom is most at peril.
About the Author
Keith Werhan. Ashton Phelps Chair in Constitutional Law, Tulane University School of Law. B.B.A. 1972, University of Notre Dame; J.D. 1975, George Washington University.
Citation
82 Tul. L. Rev. 1561 (2008)