Good primer on the secrecy struggle

Friday, October 5, 2007

In Near
v. Minnesota
(1931), while extending First Amendment protections for the
press against the use of injunctions, Chief Justice Charles Evans Hughes carved
out an exception to the blanket “no prior restraint” rule by noting: “no one
would question but that government might prevent … publication of the sailing
date of transports or the number and location of troops.” Hughes treated this as
a minor caveat. Unfortunately, where the boundary lies between permissible and
impermissible publication or other public dissemination of information was
neither raised nor settled there.

How much potential harm to national security or national interests must be
shown before the Supreme Court will support government claims to secrecy? When
is danger “imminent” or “serious”? Will courts be too generous to the
government’s secrecy claims? And what level of scrutiny should be applied to
cases weighing freedom of the press against such claims?

Viable democracy
If democracy is to be viable, citizens must be
able to inform themselves about public measures and government activities.
Speech about the conduct of government lies at the heart of the First Amendment,
yet the government often is the exclusive possessor of information that would
have high value for informed public debate.

Top Secret: When Our Government Keeps Us in the Dark (Rowman &
Littlefield, 2007) is a short, engaging and highly accessible book by Geoffrey
R. Stone. It examines tensions between government’s claims of secrecy and the
efforts of citizens, government employees, and journalists to gain and share
access to information public officials would like to keep secret.

Stone, the Harry Kalven Jr. Distinguished Service Professor of Law at the
University of Chicago, has received numerous prizes for works such as his 2004
book, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to
the War on Terrorism.
This new volume is part of the First Amendment
Center’s Free Expression in America series (series editors Ronald Collins and
David Skover). The work grew out of a paper presented to a 2006 First Amendment
Center workshop on the Espionage Act and the press.

In Top Secret, Stone attempts to make sense of the doctrines and tests
the Court has developed. The book is a very good primer on what is relatively
well settled, what is ambiguous, and what terrain remains unexplored in the law.
It reads like a fine lecture to a university audience in which Stone moves from
easier to harder balances to strike in situations involving the dissemination of
government information by citizens, government workers (some of whom may be
whistleblowers) and the press.

Stone makes clear that the level of deference courts give to government
officials seeking to protect secrets does and should vary: In the case of
ordinary individuals, there are higher standards and burdens placed on
government than in the case of public employees, who may have agreed not to
disclose materials they work with or learned on the job.

Contexts & considerations
Prof. Stone also explains differences
between approaches to sharing proprietary information in ordinary criminal law
and in First Amendment law. He argues that “if we grant the government too much
power to punish the press, we risk too great a sacrifice of public deliberation;
if we give the government too little power to control confidentiality ‘at the
source,’ we risk too great a sacrifice of secrecy.” The author contends that we
pay a price for simple, easy-to-administer rules, but in some situations, these
may be the better bargain. “Just as we grant the government ‘too much’ authority
to protect secrecy at its source, so, too, must we grant the press ‘too much’
authority to probe that secrecy.”

Chapter 4, the longest and most impassioned, concerns journalist-source
privilege, with Stone acting as an advocate for reform. Here, he argues for
passage of an unqualified federal journalist-source privilege, finding that it
is, on balance, the best arrangement for serving the interests of society.
Ultimately, he believes that the balances struck between secrecy and
accountability over the years are pretty good ones.

To better consider how well-tweaked past balances between secrecy and the
public’s need for information will hold or perform in the current era, readers
will want to ask whether the current administration’s vigorous efforts to
strengthen the power of the executive branch after 2001 are like, or unlike,
earlier administrations’ responses to wartime or to emergencies.

Scholars such as Kim Lane Scheppele, Jack Balkin and Sanford Levinson believe
the United States is in a period of major constitutional change. Stone also
tends to assume a community of discourse such that all or most of those who pay
adequate attention to law and courts would understand or evaluate “imminent” or
“serious” or “danger” in a roughly similar fashion. This may leave some very
important questions about constitutional values and about constitutional
continuity and change unexamined.

Stone’s text is only 66 pages. The remainder consists of a bibliography and
several appendices that contain an overview essay on the statutory framework
pertaining to the balance between government secrecy and freedom of the press by
Professor Stephen I. Vladeck; a reverse timeline on laws and court decisions
relating to the press, with heavier emphasis on 2005-2006, the Espionage Act
(1917) and related primary documents; and the per curiam opinion, concurrences,
and dissents in one highly relevant Supreme Court case, New
York Times Co. v. United States
(1971), the Pentagon Papers case.
Because of the emphasis in Chapter 4 on Branzburg
v. Hayes
(1972), addressing whether the First Amendment includes a
journalist-source privilege, it would have been useful had this case also been
included in the appendices.

In sum, Top Secret is a little book that will be accessible and of
interest to a wide audience.

Carol Nackenoff is professor of political science at Swarthmore College in
Swarthmore, Pa., where she teaches constitutional law, American politics, and
environmental politics and policy. She is at work on a monograph on the
contested meaning of citizenship in the United States, 1875-1925. She was a
contributor to
The Supreme Court and American Political Development
(University Press of Kansas, 2005), and is the author of The Fictional
Republic (Oxford, 1994).