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Is the Press Losing the First Amendment?

I

Writers have had an up and down time in the courts recently. The press is worried about a series of new judicial decisions that it believes will sharply decrease its powers and shrink the role of the First Amendment in American society. The latest of these is the amazing case of US v. Snepp, in which the Supreme Court ordered an author to turn over all his profits to the government without even holding a hearing on the issue. But the press has also won what it regards as important victories. The most recent of these is the Richmond Newspapers case, decided only a few months ago, in which the Court reversed its decision in an earlier case and held that reporters, at least in principle, have a right to attend criminal trials even when the defendant wishes to exclude them.1

US v. Snepp is much the more important of the two cases. Frank Snepp signed a contract when he joined the CIA, promising to submit to it, before publication, anything he later wrote about it. The CIA argues that that agreement, which it obtains from every agent, is necessary so that it can make its own judgment, in advance, about whether any of the material an author proposes to publish is classified, and take legal action to enjoin what it does consider classified if the author does not accept its judgment. Snepp wrote a book called Decent Interval, after leaving the agency, in which he sharply criticized the CIA’s behavior in Vietnam during the final months of the war. He feared that the agency would use its right to review his manuscript to delay and harass him by claiming that matters of no importance to security were classified, as the agency had certainly done in the case of Victor Marchetti, another former agent who had written and submitted a book.2 After much indecision Snepp decided to publish his book without submitting it to the CIA first.

The agency sued him under the contract. Snepp argued that the First Amendment made his contractual agreement null and void because it was a form of censorship. But neither the federal district court nor the Circuit Court of Appeals, to which Snepp appealed, accepted that claim. The district court ordered Snepp, by way of remedy, to hand over to the government all his profits on the book—his only earnings for several years of work—but the Circuit Court did reverse the district court on this point. It said that the government must be content with such actual financial damages as it could prove it suffered because Snepp had broken his contract, which is the normal remedy in breach of contract cases.

Snepp appealed to the Supreme Court on the First Amendment point. The government asked the Court not to take the case for review, and said that it was satisfied under the circumstances with the damage remedy the Circuit Court had ordered. But it added that if the Court did take the case, it would like the opportunity to argue that the Court should reinstate the district court’s much more onerous remedy. In the end the Court did accept the case, against the government’s wishes, but, as it turned out, only for the purpose of reinstating the harsher penalty. The Court did that, contrary to all traditions of judicial fairness, without offering opportunity for argument to anyone. A court that is supposedly dominated by the ideal of judicial restraint twisted principles of procedural fairness to reach a result for which no party had asked.

Some journalists speculate that the Court is furious with the press over The Brethren, Woodward and Armstrong’s “inside story” of the Court published last year, and took this opportunity for revenge. But many First Amendment lawyers take the more worrying view that the case is only the latest and most dramatic example of the decline of free speech in the United States.

It is worth describing the evidence for this gloomy opinion in some detail. No leading constitutional lawyer (except Mr. Justice Black) has ever thought that the First Amendment bars the government from any conceivable regulation of speech. It has always been possible for people to sue one another in American courts for libel and slander, for example, and even the most famous defenders of free speech have conceded that no one has a constitutional right to cry “fire” in a crowded theater or publish information about troop movements in time of war. Nevertheless there have been tides in the Court’s concern for speech as against other interests, and the present moment strikes many commentators as very low tide indeed.

The Warren Court moved very far, for example, toward protecting pornography from the censor, on the ground that it is not part of the state’s concern to decide what people, in private, should or should not find tasteless or embarrassing. But the Burger Court endorsed the idea of censorship in accordance with local standards of decency, and though this test has posed no problems for the pornographers of Times Square it has made many movie theaters in small towns very cautious indeed. Defamation suits brought by public figures against newspapers provide another example. The Warren Court, in its famous decision in Times v. Sullivan, held that a public figure could not sue a paper for libel even if what that paper had published was both false and damaging, unless the public figure succeeded in showing that the paper had been not merely wrong but either malicious or reckless in what it published. The Court held that public figures must be supposed to have waived their common law right to sue for ordinary misrepresentation.

The Burger Court has not overruled the Sullivan decision, but it has narrowed the class of people who count as public figures for this purpose, and in the recent case of Herbert v. Landau it held that even when a public figure sues, reporters may be examined, under oath, about their methods of investigation and editorial judgment, in an effort to show their malice or recklessness. The Court rejected the protests of newspapers and networks that the threat of such examinations, in which reporters would be forced to defend largely subjective judgments, would inhibit reporters’ freedom of inquiry and so make them less effective servants of the public.

Two of the most important recent judicial decisions involving First Amendment claims never reached the Supreme Court. The first of these was the much publicized case of the New York Times reporter Myron Farber, which I discussed some time ago in these pages.3 The New Jersey courts held that Farber could be jailed for contempt because he refused to turn over his files, which might well have contained information useful to a defendant accused of murder, to defense attorneys. The Times (supported by other papers) argued that unless reporters are able to promise confidentiality to informers, for example, their sources will disappear and the public will lose an important source of its information. But the courts did not accept that argument.4

The second was the case of The Progressive, which ended in comedy, but was nevertheless the occasion for the first preliminary injunction ever granted in the United States against publication in advance. That magazine proposed to publish an article entitled “The H-Bomb Secret: How We Got it—Why We’re Telling It,” and submitted it to the Atomic Energy Commission for informal clearance. The author had in fact used only public and legally available information. But the Commission, relying on its claim that all information relating to atomic weapons is “born classified” under the Atomic Energy Act, and cannot be published unless it is affirmatively cleared for publication by the Commission, refused to pass the article and sued to enjoin it. The Commission persuaded a district court judge, who listened to government testimony in secret, that publication would be damaging to national security, because it might enable a smaller nation (Idi Amin’s Uganda was the example of the day) to construct a hydrogen bomb.

The Progressive appealed the district court’s injunction to the Circuit Court, but before that Court acted it became apparent that all the information the author used was in fact available at a public library maintained by the Commission, and several newspapers then published the contents of the proposed article without seeking clearance. The government withdrew in some embarrassment, and The Progressive‘s article was finally published. Nevertheless it was ominous that the First Amendment provided so little protection in this case. The Commission’s “born classified” argument—that it is illegal to publish any information about atomic weapons that it has not specifically cleared—is absurdly overbroad, and would not have been sustained, I think, by higher courts. But the courts might well have sustained a procedure that allows a judge to decide particular censorship cases in secret proceedings where the judge may be unduly impressed by government technical “experts.” The Atomic Age is not a healthy environment for free speech.

Not all the evidence of the present decline of free speech is drawn from judicial decisions. The Freedom of Information Act, which was strengthened by Congress after the Watergate scandal, provides that anyone can obtain any information in the hands of the federal government, with certain exceptions to protect personal privacy, trade secrets, national security, and the like. We owe much valuable information—for example, parts of William Shawcross’s book on Cambodia—to that Act. But pressure has been building for substantial amendment. Doctors point out that double-blind experiments testing new drugs and procedures are ruined when reporters discover information that destroys the confidentiality that makes the experiments statistically significant. Scientists argue that the incentive to carry on research may be jeopardized when newspapers publish details of interesting grant applications. The National Disease Control Center finds that hospitals will not seek its aid in locating hospital infections when journalists can make the Center’s reports to the hospitals available to potential litigants.

The CIA already benefits from a specific exception to the Freedom of Information Act allowing it to withhold information on grounds of national security. It now seeks much more confidentiality—and, in the atmosphere of concern for better intelligence that has followed the seizure of the American embassy in Iran, it may get it. The Justice Department, for example, is sponsoring an amendment (HR 7056) that would exempt from the Act whatever the CIA deems to be information obtained from nongovernment sources, or information that tends to identify intelligence sources, or information concerning intelligence-collecting systems. The proposed amendment expressly provides that the CIA’s decisions to withhold information by declaring that it belongs to one of these categories will not be reviewable in any court. So far, however, the Senate committee concerned with the CIA has resisted such restrictions.

Congress is now moving toward passage, however, of a new bill that would make it a crime for a former CIA agent or anyone else to publish the name of a present agent. The Senate version, as amended in the Intelligence Committee, now provides that those other than present or former agents who publish names are not liable unless they do so as part of a “pattern or practice” of such disclosure. The report of that committee indicates that this qualification is to protect “mainline journalists.” But the qualification is so vague as to offer little protection indeed, and the bill, if constitutional, would surely constrain journalists’ investigation of the agency.

  1. 1

    The earlier case was Gannett v. DePasquale, decided only last year, which the press especially resented. That decision permitted a judge to exclude reporters from a pre-trial hearing, and Chief Justice Burger’s opinion in the Richmond Newspapers case states that the earlier decision was intended to apply only to such hearings and not to actual trials. But Burger’s own opinion in the Gannett case, as well as the opinions of other justices, seemed to cover actual trials as well, so that the Richmond Newspapers decision was probably a change of mind, as Mr. Justice Blackmun says it was in his own separate opinion in the latter case.

  2. 2

    Victor Marchetti and John D. Marks, The CIA and the Cult of Intelligence (Knopf, 1974).

  3. 3

    The Rights of Myron Farber,” New York Review, October 26, 1978.

  4. 4

    Nor did the British House of Lords in a recent case in which British Steel Corporation sued Granada television to discover the name of an informer in the Steel Corporation’s management.

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