Wednesday, May 28, 2014

Interpretation cannot replace Innovation

America, you have a problem. It is called the First Amendment of the Constitution, a principle of governance that must have been inspired when it was formulated at first, but is clashing with a modern era whose exigencies could not have been foreseen by the framers of the Constitution at the time that they framed it. Here is how the Amendment reads:

“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.

What will come out of all that should be used in the future to rewrite the First Amendment.