The First Amendment; Absolutism

The First Amendment and the Free People Weekly examination of civil liberties in the media and the Viking seventies produced by WGBH radio Boston in cooperation with the Institute for democratic communication at Boston University. The host of the program is the institute's director Dr. Bernard Gruber. How absolute are our rights under the First Amendment. Is this such a position that could be honestly taken as describing yourself as an absolutist on the First Amendment. You know the words that the guarantees are so unconditional that one may not see any reservations in them to help us answer that question. I have and I'm delighted to have as my guest Professor Everett he denys of the University of Minnesota. He is presently a liberal arts fellow in law for the year the first liberal arts fellow in law at Harvard Law School. His 978 works include three books Justice Hugo Black the First Amendment. Enduring issues in mass communications in the media society he writes widely in law reviews

including such such scholarly works as the media society and evidence about mass communications in America. I guess that I could best describe every dentist as one of the most proficient and hard working analysts on First Amendment subject. But I'm not going to let you get off with a compliment. So every dentist let me ask you that question that I posed first. What's your feeling about people like Nat Hentoff the media critic who described themselves as absolutist on the First Amendment. Well I think Hentoff is I think he tends to take a radical position on the First Amendment. He tends to go full throttle when a First Amendment issue arises and he believes I think absolutely in the right to disseminate information. Many other people who have looked at the First Amendment in a somewhat different way and have also

been absolute as I suppose the philosopher Alexander Mikkel John is a good example who used to talk about the First Amendment as the preferred freedom in America and felt that it should take precedence over other freedoms and rights which are guaranteed in the Bill of Rights and in the Constitution. Justice Black who I've written about is regarded as an absolutist I would call him a near absolute is because when you're on a court it's very difficult to be an absolutist because issues do arise where rights come into conflict and it's difficult to articulate a notion that the First Amendment or freedom of particularly the free press aspects of the First Amendment free speech should always take precedence over everything. One of the most interesting cases to come along in in a long while I guess almost a classic case. One person described it as the ideal case that Nixon and his Attorney General Mitchell would

have liked to come along in their administration is situation involving the first time that a federal judge in the history of the United States has ever exercised judicial prior restraint forbidding an article from being published on the grounds of national security at least that is what we we learned now. It involves an article by the progressive magazine which publishes out of Milwaukee Wisconsin. And the editor I believe is Mr. Noel K. and O'DONNELL Well they they had an article by a writer Mr. Morland describing the hydrogen bomb which I believe was supposedly going to be entitled How the hydrogen bomb works. Yes the the writer said that he took all his information from public sources from government documents scientific magazines and the like.

What's your feeling about this. Can the government keep from the public. Public information even if the public information or what is alleged to be public information is on such a sensitive subject. I'm not going to say anymore at the moment just to get your first yes. The government can very well withhold information from the public and does all the time but I mean public information. Well he said all of these sources were a public source as if that's the claim. Yes this is this is what's difficult to know without knowing the exact content of that article and what's being what's being written about. I think the Atomic Energy Agency and the Department of the Department of Energy. Have expressed the opinion that the way that this is put together the synthesis of material is very damaging to the country and therefore should not be published. And this is the kind of age old argument that goes back a long way and you're right it is a

classic case it's the one that people have always looted to which figure then figured wouldn't wouldn't come up and there's an old adage in the law which is great cases make bad law and there's never it never it seems that there's never a perfect case there are some problems with this particular one because it is prior restraint but is prior restraint. Partly because of the sloppiness of the progressive magazine in circulating its material before hand to get some clearances from scientists but not doing in a very careful manner I don't think the material fell into the hands of one person who felt it. It should not be published to be called progressive as I understand it told him he was turning it over to one of the departments in. In Washington and they asked him not to. There are a number of mitigating circumstances in this case but if you go all the way back to 931 in the famous case of near against Minnesota which of course is the real beginnings of a doctrine against prior restraint in the

American law. Certainly in First Amendment law in this century they say they talked about some exceptions whereby there could be a restriction on publication and there could be prior restraint in one of the restrictions was information involving movement of troops during time of war. Things which would affect the national security of the country and anything which would tend to destroy or disrupt the government. So that was one of the strongest statements in favor of a doctrine of no prior restraint. And yet it provided exceptions to all this so the progressive case in some ways not unlike the Pentagon Papers case there are similarities it's an interpretation of a different area the law I believe that the government is bringing this case under some interpretations of the Atomic Energy Act which have to do with the passage of information. And I think question might eventually be one of is this all public information and if so.

Is it appropriate to go ahead and print it. In some respects some critics think I believe that the progressive might have been better off to have gone ahead with its publication and suffered consequences after the fact and that's that's what usually would happen when you hear a post hoc evaluation of First Amendment issues rather than prior restraint because there is a question here some people none of us have seen the article trying and and therefore we don't know whether it is or is not a recipe kind of article. Yes there is also the claim made by some people that it will help terrorists wander around various cities with suitcases with hydrogen bombs. The Russians know about it. Most scientists in the world of any capability know about I don't think there's really any secret about hydrogen bomb production anymore in terms of the basic physics of it. I'm reminded of another case in a completely different area terminally Ella vs.

Chicago which was 40 or 50 case involving a priest who was allegedly inflammatory and the court decided the Supreme Court decided that he hadn't gone too far and I think it was Justice Douglas who said something like this court has signed a suicide pact. But at any rate in his in the minority decision at any rate when we deal with a subject that is vital to the security of the United States have we amended the First Amendment. Or is it the same situation as would have been in vision by the Founding Fathers in discussing some French threat. That's very difficult to say because the Founding Fathers were somewhat vague on what the First Amendment actually meant. And from what I can determine in reading a good deal about this and reading some of the philosophical foundations which the founding fathers based their thinking on. Was that the first move was

envisioned as a rite of dissemination of information and that one of the purposes of that dissemination was to keep government honest to keep a they have a kind of surveillance or what later became known as the watchdog function of the press. In looking at government. So whether or not they would have envisioned this kind of situation I suspect they might have because there are always exceptions made by Milton by John Locke by many of the libertarian philosophers who talked about freedom of expression that freedom expression could never go so far as to totally destroy and disrupt the society so I suppose if it were a situation that would bring down would be it would destroy a government. Or cause foreign power to seize control or something like that. That would definitely be a constraint on freedom because there's a balance here.

You mention Milton. I am reminded of that those lines of his in which he and the area begin to go said he who slays a human life in effect slays one one life but he who slays a book commits thinking out of his language a kind of massacre. Yes. I happen to know just to shift the subject just a little bit that you do not sympathize with those who feel that the press is in seeking redress of its grievances through what is becoming more constant appeals to the judiciary. Through litigation. You you you're kind of an absolutist in one way in that you feel that the right is found in the First Amendment and in the in the proper restraint of editorial judgment rather than in winning court cases could you explain that a bit more. Yeah I think one of the best ways to do that is to go back and look at what Fessor Alexander Bickel said after the New York Times case the Pentagon Papers

case he was the attorney for the times and it argued the case before the Supreme Court and you know the the Times and Washington Post prevailed a 6 to 3 decision and they did stave off the efforts of the in the Nixon administration to restrain publication. Well one would have thought that there was a great victory for freedom of the press and it certainly was trumpeted as such in the in the country's news media but Bickel in a very thoughtful book afterwards said that any time you test the limits of freedom. You're actually curtail freedom and that he felt he felt that by spelling out and explicating in great detail the nature of the First Amendment that is one of the total dimensions of the First Amendment to whom does it apply. What exactly does it mean. Would actually begin to set barriers because anytime you have definitions you have parameters. I suppose one can carry that too far but if you look at the flow of cases to the U.S. Supreme Court cases dealing with the press since the mid-1960s machine a great many

of these cases many cases of libel privacy cases a fair trial free press cases involving the testimonial privilege of journalists or that is journalist privilege not to testify in a criminal or civil proceeding many many cases I don't know how many but every term of court has usually several cases. Well what we find is the spokesman for the news media going into the court and presenting a rationale for their rights. Very often they're asking for rights that no individual citizen would have. The individual citizen does not have extensive rights to gather the news to carry cameras into a particular place. He doesn't have rights with regard to. Certain areas of publication they carry the notion of the First Amendment not beyond that individual free press into a kind of institutional free press in doing so. And so I think they're bargaining away a good deal their position what they're doing is they're going in and saying

we are the representatives of the public. We stand for we act for the public we are the surrogates of the public in this instance therefore we should have rights that no individual would have. Well I think what that will lead to eventually and to some extent already has is to define who is the press. Does that mean it's just the commercial press the metropolitan dailies the television and radio stations does that mean the underground and alternative publications are also included does that mean book publisher. What about independent scholars. And you get into very difficult questions of definitions so that's one area. I think that the more that the press claims to be representative and the more the courts accept that claim than they do in some instances though not in all the more they'll be a tendency to define that concept of representation. What do you mean by that. How are you the representative how are you chosen. We're already seeing in broadcasting of course criticism on another dimension of representation which is a natural outgrowth of this and that is to say what kind of

balance are you bringing to the news programming. Are you giving representative coverage to all constituent groups in society are you covering all of the communities and all of the minority groups with a certain amount of attention. But what what what ever it is the is the answer if you have a court injunction. Yes. Step one against your newspaper. I'm not arguing against your premise so far but let's say you have a court injunction against your newspaper or you have an action taken against you by the government. Do you just sit there and wait. If you don't go to the courts. Let's follow your argument that if you keep going to the courts you know you're reducing the First Amendment. What do you do. Do you go to the court of public opinion where you might in some instances I'm not saying that you would never go to courts in some of these cases. Obviously there's no choice. It's a matter of either going to court or simply not being able to. We know most editors and publishers have turned over these questions to their lawyers because they're so frightened by

almost anything that happened they immediately want their lawyers to act for them. Well that's partly true but it's also true that I think there's a lust for litigation these days there's the press is caught up in the litigation explosion as anyone else. And in the instance for example of the Pentagon papers The New York Times a law firm that handled the New York Times business recommended against publication and refused to take that case and they may have eventually lost the. Or curtailed their relationship with the times altogether and so the times really had to go out in effect and recruit to get people to represent them. It's a really complicated problem because in some instances in court cases it's a journalist is faced with a matter of either revealing sources or going to jail and so you can't avoid it. But I'm convinced that in a great many instances it's simply not necessary carry things to the stage of litigation and I

think that things can be solved very often through intermediate methods I think through other kinds of negotiation. Short of the courts and I think pushing this all the way to the Supreme Court is very often extremely dangerous I think. Jack Landau who is certainly one of the head of the Reporters Committee on freedom of the press reported in Washington writing great spokesman for. I'm not sure whether you'd call him an absolute as perhaps not but certainly a spokesman for reporters rights freedom of the press is very concerned about the progress of the case because he feels that the political realities or judicial realities of the present Supreme Court may very well mean that should this case go up we would get a different determination than we had in the Pentagon Papers case the court has changed since that time. Justices Douglas and black who voted for them with the majority in the Pentagon Papers case no longer there. And it's it's a new ballgame when Now this brings up another view that you

have and that is that the Berger court has been greatly overrated by popular sentiment in the fourth estate echelons as being anti-press and that you do not think that this holds up under your scrutiny. Could you tell me what led you to believe. Well to in two areas I feel this is true. First the relationship of Chief Justice Berger to the news media in its coverage of the court which really has nothing to do with the doctrine that's being written by the court. And then secondly in the actual decisions that are being rendered by the Berger court there have been instances and you've talked about the second area first. Where the Supreme Court opinions written by Chief Justice Berger and others in which he has joined has tilted against the claims of the press in some instances these could be called anti-press in some instances not there have been other cases it's not a monolithic

situation there have been instances like the Nebraska Press Association case of a year or so ago when Chief Justice Berger wrote the opinion for the majority which did grant some testimonial privilege to the press and was hailed as a pro Press case. So it's not a it's not a clear kind of situation then if you go even deeper into these cases and you look at well there are number of cases involving the press and its requests to get information inside of prisons or number of important First Amendment cases in that area. Chief Justice Berger has almost always come down against the press in those situations but for a particular reason saying that he doesn't think the press has a quasar governmental. Right in this instance and the rights of the press should be any different than those of anyone else in trying to get information about public sector activities and he specifies those very clearly what he's doing is not granting exceptionalism or an exceptional position to the

press but instead saying you have the same rights as everyone else not the same time he's saying that there should be a flow of information in and out of those institutions they should not be able to to prevent discussion of what goes on there so it's a much more complicated picture I think than the press off it is that is that is one of the reasons for the complication the fact that there is so much suspicion in the country of the press and also that the chief justice may be seen by the press as being reflective of a good deal of public opinion. I think that's true and also he of course is seen as the appointee of Richard Nixon. And I think in fact Jack Anderson has said as much that Nixon hated the press. Nixon appointed burger burger hates the press. I don't know whether Berger hates the press or not. There are instances where you get that feeling that he stomped out of the American Bar Association meeting recently and refused to speak if television cameras were going to be pressed like to dwell on that for a moment because it seems to

me that the court has no more right than the legislature or the executive to sit behind a screen of secrecy in regard to its procedures. No it's public procedures. I think that if they have a Monday morning conferences or any other day in which they're discussing cases that's something else that that's private if they want to talk to their or their law clerks or if they want to keep everything about their process their discussion of cases before decision private that's fine too. But we ought to know about the court. We ought to be able to photograph the chief justice when he yearly discourses on the state of the judiciary and all the rest of it and yet he stomps out. Doesn't he realize that he is not beyond the reach of the classic decisions made by the court of other branches of government. If I could say something more about that and then and then get to your question.

It's a real irony and one I don't understand. Paradoxical I guess I should say in that in many ways. Chief Justice Berger has facilitated the flow of information at the court. When people say he's done this for self-serving reasons. But he has been very helpful in procedures for reporters. He's been praised at times of an I think recently by Carl Stern for example of proving the quality of information that flows in and out of the court. He's appointed a very competent press information officer at the court. He's done a number of very good things he's even considered a number of proposals made by reporters to have a lockup system where they could. Going to the court the night before a day when there are great many decisions in the spring to be able to read those and prepare a little better before they actually report on the very good reasons for holding those decisions back until their announced reasons anyway we are not our corn crop and so let's write a

letter to certainly has to with the stock market if a decision involving General Motors were to come down it in that were known by a select few it would be dangerous to get that information out. Just don't buy into the audience what you mean by lock up yes it means we actually keep the repressed see question till a certain hour of the morning when they can all get to the telephone That's right. Well this has been considered a somewhat radical idea. He's been going to talk about it he says it's a time idea has not come but he's discussed it and he's been very open in that sort of thing. He's granted interviews to the press which previous chief justice did not do. He's done a great many things in many ways I think I could be said that he's the most open chief justice in this century. Now at the same time that isn't very open compared with the presidency of the Congress as you point out. And. I agree with you that be very helpful in many ways to have a televised coverage of the public proceedings of the Supreme Court. I wouldn't want to see the justices conferences where they bargain in and work out compromises. Televise I don't think that would

benefit us very much but I think the public activities I see. I'm sure that at some point that will happen. There is though with regard to the Supreme Court a great deal of support among scholars and others for the sort of mysticism of the court the idea that the court should be removed from politics removed from the hurly burly of daily public life it is different than the Congress of the presidency that it should be protected and screened in and according to different state I have a dentist without completely that there should be a certain amount of mysticism but at the same time if the and I also have certain doubts about whether cameras should be allowed in courts I'm very conscious of the rights of privacy and the need to go into a court as a as a haven for us for justice. But if the chief justice of the United States Supreme Court goes to an American Bar Association national meeting and won't let the press coverage it seems to me it's the duty of the members of the bar to walk out on him.

Because it is not part of the mystique of the court he's in a public meetings or private association meeting. He has no right to lay down the ground rules if he agrees to speak. Well that's right and that's their meeting and soon they would lay down the ground rules they tend to buckle under and I notice that you don't find much criticism of the chief justice coming from attorneys or even from law professors. Well I I just have the feeling since he is not Gina Lollobrigida Sophia Loren I don't know why they buckle because he is the chief exemplar of the of the legal system and as such should show a public courtesy that is very vital to the public's comprehension of the First Amendment. Well I agree with that and he might say and I don't know exactly what he would say that he's the first chief justice to ever give a state that you do Sherry address and. He feels that perhaps he can set the ground rules for how he might do that. And obviously he is setting the ground rules I think that should be

televised. I can't imagine it would be even a great public interest in it. But I think it should be available because it's a I think an important address and that's another thing about Chief Justice Berger that in many ways is misunderstood and perhaps because he does for publicity in these instances and that is his plan for improving the quality of the administration of justice in the country has rather a broad and comprehensive program that he's implementing it all goes all the way from criticizing the quality of trial lawyers to improving judges and many other things that I think is not understood and partly because of this attitude toward the press and toward publishing but I guess my point initially was it's not as monolithic and as extreme as it's being portrayed and I think there ought to be a redress of some of the imbalance that this seemed. How would you describe yourself I you and you absolute is still re and your absolutist or a non absolutist account of absolute time I guess I would

have to say that. I'm a counter absolutist in some ways a rationalist a rationalist because I realize what that there is a system of law in the country that there are traditions that that have been set down and we simply can't go back to a system of absolutism as attractive as that is intellectually it's exciting and attractive practically. It simply can't work and won't work. So it seems to me a romantic lopsidedly silly to to support and true absolutist point of view. I notice that many absolutes have only been with what is in the jazz field or are not on the rocks lawyers and legal scholars like yourself are more cautious. Is that the reason. Well that and you realize that there are just as there is a lot of law and activity in the society that prevents any absolutism from occurring there are libel laws or obscenity laws. And if we were

starting over absolutism might be nice. Well that's a good way to end and I want to thank you every Dennis for this edition. Bernard Reuben. The First Amendment and a free people a weekly examination of civil liberties in the media. Even 1970 the program was produced in cooperation with the Institute for democratic communication at Boston University. I w GBH radio Boston which is solely responsible for its content. This is the station program exchange.