From 42 Years Ago, A Supreme Court Justice’s Take on Secrecy, Leaks and National Security

by Categorized: First Amendment, Media, Politics, Transparency/FOI, Uncategorized Date:

As the media swirls with stories of government eavesdropping and CIA leaks and national security worries, it’s instructive to recall this is hardly the first time the nation has sought to balance the public’s right to know against their government’s desire for secrecy.

In 1971, a divided U.S. Supreme Court decided the “Pentagon Papers” case, ruling that the government could not prevent newspapers from publishing stolen and leaked classified documents that revealed a pattern of official deception during the Vietnam War. Then, as now, there were concerns over the independence of the press, the trustworthiness of the Executive branch and the duty to preserve national security.

All nine justices penned individual opinions. Hugo Black, the court’s strongest First Amendment advocate, offered up a passionate defense of baring the government’s secrets, as a means of providing what he saw as true security for the nation’s bedrock values. Below are excerpts from his concurring opinion in that landmark case.

 

“In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. … In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.”

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One thought on “From 42 Years Ago, A Supreme Court Justice’s Take on Secrecy, Leaks and National Security

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