Any freedom, no matter how precious, is subject to abuse. Liberty minus the rule of law equals anarchy. Unless tempered by a little practical wisdom, Supreme Court Justice Robert H. Jackson famously warned in 1949, the Bill of Rights might become a suicide pact.
That is why the Constitution secures the unalienable rights described in the Declaration of Independence but also provides that they may be curbed – with due process of law – for the sake of safety and other overriding public interests.
Such dilemmas are utterly commonplace, the well-established stuff of Supreme Court doctrine and high school civics lessons. As far as I can tell, that was the main claim, albeit much more wittily expressed, in Michael Kinsley’s inexplicably controversial New York Times review of Glenn Greenwald’s book about publishing Edward Snowden’s leaked NSA secrets. (The Post’s Snowden stories were by others.)
Unimpressed by Greenwald’s heroic self-description, Kinsley suggested that, in a democracy, government, not individual journalists or the publications for which they write, is best positioned to weigh the openness-vs.-security trade-off on behalf of society.
No doubt the government will usually be overprotective of its secrets, and so the process of decision-making – whatever it turns out to be – should openly tilt in favor of publication with minimal delay, Kinsley wrote. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
For this restatement of common sense, Kinsley has been arraigned on the Internet as an apologist for prior restraint and vehemently scolded by The Times’ public editor, Margaret Sullivan. She accused the Vanity Fair columnist of ignor(ing) important tenets of American governance. That, plus Kinsley’s sneering tone toward Greenwald made the review unworthy of publication in the Times, Sullivan huffed.
If you find it odd that the Times’ reader advocate should be calling for non-publication of contrary views on press freedom, I agree with you.
Stranger still was Sullivan’s imputation of civics-book ignorance to Kinsley. She lectured him on the special role for the press in America’s democracy, which is protected by the courts.
Though the court has strongly disfavored prior restraint on publication, it has never flatly forbidden it. The Pentagon Papers case held that while such a ban might be warranted in a rare instance, when the government could demonstrate a vital national security interest, this was not one of them.
Meanwhile, we’re approaching the 10th anniversary of the Times’ resounding defeat in the Judith Miller case, in which the U.S. Court of Appeals for the D.C. Circuit rejected the Grey Lady’s contention that Miller had an absolute right not to disclose anonymous sources, even when faced with a grand jury subpoena for the names.
Relying on long-standing precedent, the court found it self-evident that the public interest can favor a grand jury’s constitutional function over that of the media.
Nowadays, individual journos can reach a global public almost as readily as institutions like the Times, which means that the latter is no longer quite as special.
Kinsley noted: In the age of blogs, it is impossible to distinguish between a professional journalist and anyone else who wants to publish his or her thoughts. And that’s a good thing. But it may also mean that freedom of the press is converging with plain old freedom of speech; the latter has long been subject to limited, reasonable regulation.
Recognizing this reality doesn’t mean I’m happy about it. As a journalist, I believe deeply in (and make my living from) the Founders’ vision of a free and vibrant press. I think the First Amendment should be interpreted expansively. I’m glad that the Supreme Court has never upheld prior restraint in practice, only in (limited) theory.
As a citizen, however, I recognize that there will be instances, rare but unavoidable, in which claims of press freedom and other competing rights or interests collide. In those cases, the courts – an impartial, independent branch of, yes, the government – must make the call.
Nobody is saying that news organizations should simply defer to the government when it comes to deciding what the public has a right to know about its secret activities, which is how Sullivan mischaracterized Kinsley’s argument. Of course the media can, and should, fight for its rights. But we won’t always win; it would be arrogant to suggest that we always should. The rule of law applies to everybody.