Why the First Amendment matters

by Todd Milbourn

If you are among the 42 percent of Americans who, according to a recent study, feel the First Amendment goes too far in the rights it guarantees the press, consider the case of the Pentagon Papers:

By 1971, the United States was entrenched in an increasingly bloody and hopeless war in Vietnam. Body bags were piling up, military and political officials were without an exit strategy and protests at home were gaining momentum. Despite this, then-President Richard Nixon and his administration continued to assure Americans that victory would be won.

Meanwhile, circulating the Pentagon was a top-secret study of U.S. involvement in Southeast Asia since World War II that painted a much different picture. The Pentagon Papers, as the report was known, detailed how four successive presidential administrations deceived the American public about U.S. intentions in Vietnam as well as the risks, dangers and prospects of achieving publicly stated goals.

When a disillusioned former military official disclosed the 7,000-page history to the New York Times, the government filed an injunction to stop publication. The ensuing legal battle culminated in the landmark Supreme Court ruling that lifted the prior restraints, permitting continued publication of the Pentagon Papers and allowing American citizens to read firsthand how the government had acted in their name. U.S. democracy, the court understood, would be better for it. In his historic opinion, Justice Hugo Black wrote, “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.”

More than 30 years later, we find ourselves navigating one of the most crucial periods in human history. The threats of terrorism, nuclear proliferation and growing disparities in wealth and opportunity are among the enormous problems of our unstable world. To understand the shape of these dilemmas, America needs a vibrant and aggressive free press. But many government restrictions imposed after Sept. 11, 2001 have obstructed journalists from doing their jobs. More broadly, the curtailing of civil liberties of all Americans, and many noncitizens who live here has called into question our long-standing commitment to openness and equal justice. From restrictions on information to detentions without charge and military tribunals, the George W. Bush administration seems to presume that secrecy equals security. And the public, for the most part, doesn’t mind.

Black’s brilliant words, 30 years on, seem to have been lost on many Americans.

Public regard for the First Amendment is at a new low. The Freedom Forum, a Washington, D.C.,-based think tank, surveyed American attitudes toward the freedoms of speech and press in 2002 and found that more than 49 percent of Americans feel the First Amendment gives us “too much freedom.” That’s up from 22 percent in the 2000 study. The report also revealed that more than 40 percent of Americans feel newspapers should not be allowed to freely criticize the U.S military about its strategy and performance.

The lack of appreciation for the First Amendment allows the

government considerable room to curb freedoms. With but a whimper of opposition, Congress passed the USA Patriot Act, the Homeland Security Act and other legislation after the Sept. 11 attacks that eroded civil liberties in the name of security. Pending bills would further expand government secrecy. The result is that today, the government can more easily intercept our e-mail messages and tap our telephone conversations. Noncitizens can be detained indefinitely, veiled from public scrutiny. Military tribunals, closed to the public, can be invoked to try suspected terrorists. Information once available on government Web sites or through the Freedom of Information Act is now restricted or obstructed for fear it could aid terrorists.

Americans, it seems, agree with Bush’s claim that terrorists “attacked us because of our freedoms.” And they’ve offered their civil liberties as national sacrifice. But has restricting our freedoms actually made us more secure? It’s unlikely.

Democracy demands an informed citizenry make decisions to collectively solve problems. While it’s true the executive branch and law enforcement now have broader authority, they also are less accountable. When information is limited and not independently verifiable, our ability to make those democratic decisions is hindered. How can we protect ourselves if we don’t know what the problem is?

The answer, according to the administration, is to put blind faith in government. A quick survey of U.S. history, however, suggests this is not a good idea. Recall McCarthy-era witch hunts, or the J. Edgar Hoover-era FBI or the Watergate scandal. Democracy, we’ve learned, whithers without sunshine.

Just ask H.R. Haldeman. A key player in the Nixon White House and Watergate, Haldeman had this to say about unquestioningly trusting government: “out of the gobbledygook comes a very clear thing: Ö you can’t believe what they say; and you can’t rely on their judgment; and the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it’s wrong, and the president can be wrong.”

The First Amendment didn’t come cheap. Americans have for more than 200 years fought and died for the ideals it embodies. A proud tradition of leaders – from James Madison and Thomas Jefferson to Ida Tarbell and Martin Luther King Jr. – have cherished, nurtured and aggressively defended these freedoms. A new generation must continue this fight. To do otherwise would be, frankly, un-American.

Todd Milbourn is the Daily’s

editor in chief. He welcomes comments at

[email protected]