Friday, May 05, 2006

Paying attention to History, Jackass politicians keep trying to pull the same shit


In hitting the high points of First Amendment law we've seen the chilling effects of threats to punish by imprisonment for overstepping the line of FA protection into forbidden territory to the freezing effect of an injunction in advance of publication, when word gets out, called an effect that freezes, because while in the former situation the speaker or publisher may defy the ban and inform the public, while in the latter, no publication or communication occurs, keeping the public in the dark.

If our theory is that the public is sovereign over government, which is our theory, then keeping the rulers, us, in the dark is wrong and bad, not that we're often not kept in the dark, but at least we're still trying.

In the Pentagon Papers case, Daniel Ellsberg, an employee of the Defense Department, working in the Pentagon, is given access to a 14 volume compendium of official papers that explained how and why we got into the war in Vietnam. He saw that some of the papers made a liar out of the U.S. government which was putting out a different version, i.e. a lie.

Ellsberg decided to take action. He made multiple copies the papers little by little, and smuggled them out of the building. He then distributed the copies to various newspapers so that if one were raided or shut down by the government, another would still be able to publish and the public would be informed. The NYT put a team of reporters on the set of documents and confined them to a hotel room while they studied the papers to see what story they told.

Finally the Times published and said that there was more to come in succeeding editions.

The government then sued to enjoin the Times from publishing on the succeeding days. The U.S. District Court issued a preliminary injunction pending the litigation, a temporary restraining order, and the presses stopped while the government came into court with witness who testified as to how the leaking, the publication of this report was going to hurt the government, the Paris peace talks, the POWs, the troops, etc. None of which turned out to be true as it turned out, but that was the scary story.

After Murray Gurfein, USDJ, in his first case ever as a judge, ruled in favor of the NYT, the Times appealed to the Second Circuit U.S. Court of Appeals. Another stay. Gurfein gets reversed. The case is brought to the Supreme Court, whose decision is below. If you'd like to read the background and context of the case, see Floyd Abrams's Speaking Freely (Viking, 2005).

At issue is the question of what happens when our government claims extraordinary powers in order to save the country. Some day it may need saving. That time may be now. But that is a claim which is often made, and we never know, do we? Do we wait until the roof caves in before acting, or may we act in advance? When it comes to the First Amendment, the roof has to be ready to collapse right now (see Brandenburg on the idea of imminence) before we suspend it, otherwise we have nothing left, we're a flaming dictatorship at the mercy of a tyrant. That's why we split from George III. One tyrant in our experience is enough. Some think we need to watch out for George W, but I wouldn't know about that.

Note that in the Pentagon Papers case that although the government lost this round, it was not knocked out of the ring; it can come back and fight again another day, arguing national security. Pres. Bush is already arguing that national security interests justify long detentions with little or no court process (Guantanamo, warrantless eavesdropping).

The thing that strikes me about these cases in which the claim is made that the life of the nation is at stake if publication occurs, is that the decisions are based on FEAR. The compelling governmental interest, as we now call the reasons for over-riding constitutional values, such as occurred in the Japanese internment cases, is fear that some undesirable result might occur.

The claim is that it will occur. Sometimes it doesn't occur at all, as in the Japanese internment cases and the Pentagon Papers case. But sometimes there are missiles found in Cuba, too; so the danger is, or may be, there. What about weapons of mass destruction in Iraq. Sometimes the government gets it wrong, but acts anyway. More


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