The Secrecy Dilemma

In 1971, as a result of publishing the Pentagon Papers, an injunction was placed on The New York Times. This was the Nixon administration’s attempt to quiet The New York Times and claim dominance in censure over the press. Essentially, the executive authority was violating the First Amendment of the US Constitution, which says:

“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

The New York Times Co. versus the United States, 403 U.S. 713 (1971) was argued before the Supreme Court on June 26, 1971. The opinion of the Court was presented on June 30, 1971, resulting in a 6-3 ruling in favour of The New York Times. Those who concurred with the decision of the Court included Justices Hugo L. Black, William O. Douglas, William J. Brennan, Potter Stewart, Bryon R. White and Thurgood Marshall.

The New York Times won back its right to publish the Pentagon Papers study, presenting the next article in the series the following day.

Justice Hugo L. Black provided a very passionate opinion. He came down harsh on the Nixon Administration for its lack of respect for the First Amendment.

Here is an excerpt from Justice Black’s opinion:

«The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law… abridging the freedom… of the press…” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.»

On July 1^st, 1971, The Washington Post published a long article on the case, titled: Court Rules for Newspapers, 6-3. Here’s an extract of Justice Potter Stewart’s comments on the case (as reported by John P. MacKenzie, Washington Post Staff Writer).

“For this reason,” said Stewart, “it is perhaps here that a press that is alert, aware and free most vitally serves the basic purpose of the First Amendment.” Secrecy is vital for the national government’s operations, Stewart and White acknowledged, adding, however, that “there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.

“[The] very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hall mark of a truly effective internal security system would be the maximum possible disclosure.”

In his recent article on WikiLeaks (published in Time magazine, 13 December 2010), Massimo Calabresi rightly cites Justice Stewart again.

[This] is why the President’s real goal is to find a balance between keeping secret what should be secret, making transparent what should be transparent and doing it all in such a way as to augment the effective conduct of government. Potter Stewart had a go at defining such a balance in his Pentagon papers opinion in 1971. “The hallmark of a truly effective internal security system,” the Justice said, “would be the maximum possible disclosure, recognising that secrecy can best be preserved only when credibility is truly maintained.”

Will freedom of speech ever be truly free?