Journalists and Judges
Neither can be trusted to make good decisions about secrecy.
Dec 4, 2006, Vol. 12, No. 12 • By ROBERT F. NAGEL
IN DEFENDING their decision to expose the Bush administration's secret bank-surveillance program earlier this year, the editors of the New York Times and Los Angeles Times emphasized that they had carefully weighed "the merits of publishing against the risks of publishing." Bill Keller and Dean Baquet earnestly assured readers that, had they been convinced "the risk of publication outweighed the benefits," they would have withheld the articles. Many people, aware of the obvious and powerful incentives that newspapers have in favor of publication, probably were not especially reassured by these protestations. Perhaps anticipating a skeptical reception, Keller and Baquet went on to suggest (among other things) that journalists, like the rest of us, do not want to be blown up by terrorists.
For anyone who nevertheless has doubts about turning over to reporters the job of assessing risks to national security, there may be comfort in the possibility that some existing or newly minted statute might make it a crime to publish information about secret antiterrorist programs. However, it is not clear that the judiciary can be depended upon to punish the publication of classified information. The courts, of course, would decide whether freedom of speech protects the publisher of such information. Interestingly, the relevant constitutional inquiry would be essentially the same one that Keller and Baquet said they had undertaken. Thus, an apparently sober and disinterested judiciary would review journalists' judgments about whether the value of the information outweighs the danger to the public of its disclosure. Unfortunately, judges are not especially good at risk assessment either. In fact, they wear many of the same blinders as reporters.
Consider the modern record of the Supreme Court. The most relevant decision is the famous Pentagon Papers case, decided in 1971. The justices were faced with executive department claims that printing this extensive history would do great harm, including disclosing military plans and the identity of spies, not to mention weakening the nation's alliances and prolonging the Vietnam war. The Court declined to prevent publication largely on the ground that the government had not demonstrated sufficient danger.
In itself, this result is not necessarily dismaying. But it is dismaying that the justices came to this conclusion without having studied--much less having had experts analyze--the 47 volumes at issue. Before oral argument was held, most of the justices had never even visited the room where the papers were being kept. Indeed, Solicitor General Erwin Griswold, representing the government at that argument, had not had time to read the documents. The case was effectively decided within a day or so after the argument, so there was no opportunity for any of the justices to study the massive report.
Whether the justices' guess about the risk of harm from disseminating the Pentagon Papers turned out to be right or wrong, the simple fact is that they were willing to decide matters of great complexity and urgency in a state of substantial ignorance. In such a state it was not difficult to dismiss, as several did, dangers that (while possibly extremely serious) might be somewhat remote or uncertain. If the majority had held that the First Amendment requires the public to accept the risk of any and all harms resulting from the publication of classified information, its extreme haste would have been unwise but legally irrelevant. Instead, the justices preferred to engage in a pretense of evaluating the danger to national security without actually doing any such evaluation.
Many legal analysts regard the justices' haste in the Pentagon Papers case as having limited significance because it was a consequence of the government's unusual effort to prevent publication (as opposed to punishing it afterwards). But the Court is often cavalier in its judgments about harm to the public. A much more ordinary case, decided in 2001, illustrates the point.
In Bartnicki v. Vopper, the Court held that under certain conditions it violates freedom of speech to impose money damages on a person who broadcasts the contents of an illegally intercepted cellular telephone conversation. (In this case, a radio station, reporting on a labor dispute, had aired a taped phone call between union officials, provided by an anonymous third party.) The Court had to acknowledge that, as Congress had found, publicizing private conversations does harm to private relationships; in fact, the damage has free speech ramifications because exposure inhibits the development of ideas that can take place during private discussions. But the Court declared that such privacy interests are less important than the public's need for information on a matter of public concern.