“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for the redress of grievances.”
The part that stands on contentious grounds at this time is
this: “Congress shall make no law … abridging the freedom … of the press.” It
has come to light lately that in an era of instant worldwide communication, a
piece of secret information leaked to a journalist has the potential to harm
the nation greatly when used by a potential enemy that may be working to harm
the country from half a world away.
No one has suggested that the journalist to whom the
information was leaked should be punished for publishing it. The question is
whether or not the journalist can be forced under the threat of punishment,
such as a jail term, to divulge who the source of the leak was.
One such case will soon be taken up by the Supreme Court of
the United States .
It is discussed in an article written by Theodore J. Boutrous Jr. under the
title: “A First Amendment Blind Spot” and the subtitle: “Recent Supreme Court
rulings have protected free speech for just about everyone but journalists.” It
was published in the Wall Street Journal on May 28, 2014.
Having laid out the particulars of the case, Boutrous
remarks that “the First Amendment singles out freedom 'of the press' as …
warranting protection.” He reminds the readers that 50 years ago, the High
Court “protected journalists from spurious defamation claims.” But he laments
that while the Court repeatedly interpreted the First Amendment so expansively
as to protect free speech in all sorts of circumstances – ranging from campaign
financing to film making to picketing at funerals, to Nazi parades – it has
failed to protect journalists who report on major national security issues.
Thus, Mr. Boutrous who is a lawyer and has filed a
friend-of-the court brief in this case, is asking the Supreme Court to “apply
its expansive modern view of the First Amendment, for the first time, to
protect freedom of the press.” In other words, he is asking the Court to
interpret language written two centuries ago in such a way as to harmonize with
the modern tendency to expand on the freedoms that people enjoy. This is a good
thing; and it is, in fact, what the Court has been doing for a long while now.
The problem, however, is that the threats to the nation have
also been expanding, and when it comes to national security, the more that
freedom is granted to journalists, the greater the potential risk to the nation
and to millions of people.
In a situation such as that, the simple act of interpreting
an amendment of the Constitution will prove to be inadequate to deal with the
consequences. What is required is for the Congress to look into the question,
and legislate in such a way as not to abridge the freedom of the press, but in
a way that will protect the nation from its possible abuses. This is a time
when comprehensive innovation must replace the simple act of interpretation.
This will be a tricky thing to do, and will require a great
deal of thinking on the part of many smart people. Thus, what the Supreme Court
can do for now is probably to stay the case for a time while giving guidance to
the Congress at to how it may proceed.