The Application of First Amendment Rights - Case Study Example

The application of First Amendment rights Affirmative opinion: The Defendant Abraham Washington is indicted under Section One of the Official Intelligence Secrets Act of 2008 for revealing the interrogation techniques of the CIA. Defendant is charged with copying and publicly releasing with prior authorization, the contents of a memorandum of the Justice Department authorizing water-boarding. The major issue that arises in this case is whether the statute in question has hindered the free exercise of the defendant’s liberty of expression in violation of the due process clause of the Fourteenth Amendment. The defendant contends that his action falls within the purview of his fundamental, constitutional right to free speech. However, the freedom of speech “does not confer an absolute right to speak…..without responsibility, whatever one may choose….reasonably limited….this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.”(Gitlow, Sanford, affirming, p 4). In the circumstances of this case, the present statute has been implemented to provide the Government with an advantage in gathering information from suspected terrorists. Since this is an issue that impinges on national security, I cannot hold it to be an arbitrary or unreasonable exercise of State power in requiring that such interrogation techniques are to be kept confidential. The danger of substantive evil that arises in this case is such that it could compromise the efforts of the State to extract information from terrorists and protect the country from such attacks, if sensitive information such as interrogation techniques is revealed. Therefore, the defendant’s act in attempting to publicize the interrogation techniques of the Government amounts to creating a “clear and present danger” that could bring about “the substantive evils that Congress has a right to prevent.” (Gitlow, Holmes, dissenting, p 5). In this instance, the substantive evil is the threat to national security that could result from the acts of terrorists and therefore is a “substantive enough interest for the Government to limit speech.” (Dennis, Vinson, affirming, p 8). The actions being waged against terrorists by the Government are equivalent to those carried out in a war situation and therefore the rules of clear and present danger may be applied in this case in arriving at a judgment on acts that are likely to go against the government efforts to protect the country from terrorists. Another aspect that must be taken into consideration in this instance is the intent of the defendant in revealing confidential, top secret information. He contends that his intent was to expose the hypocrisy of the Government, however in a situation of imminent danger posed by terrorists to national interests, the revealing of sensitive information solely for purposes of exposing hypocrisy; however it may also function in the nature of activity that spreads propaganda against the Government and is subversive. Under such circumstances, the Government is not obligated to “wait until the putsch is about to be executed…” (Dennis, Vinson, Affirming, 7). Since the defendant was aware of the law, his was to subvert the law and spread propaganda against the Government. The First Amendment protects free expression, but cannot be extended to actions designed to propagate damaging information that could impede government efforts to extract information from terrorists; hence it must be limited. “Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid” (Dennis, Vinson, Affirming, 10), and this may qualify as one such instance. Dissenting Opinion: The major issue is whether the Defendant’s revelation of confidential information can fall within the scope of the due process clause of the Fourteenth Amendment. The freedom of speech and the press which are “protected by the First Amendment….are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment….”(Schneck, Holmes, Affirming, 4). The defendant, Washington, appeals his conviction on the grounds that his right to freedom of speech has been violated. The defendant has been arrested on the basis of disclosure of interrogation techniques and the dangers posed to the Government in protecting national interests. The defendant, however, has the right to express his views and ideas, irrespective of the kind of reaction they could provoke. “Eloquence may set fire to reason….if in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” (Gitlow, Holmes, Dissenting, p 5). As Justice Holmes has correctly inferred, there is little justification for suppressing free speech on the basis of the potential discord it could produce and the free flow of ideas must be allowed to proceed. Limitations have been imposed on the exercise of the First Amendment rights, however before such limitations are exposed, it is necessary to question whether “the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” (Dennis, Vinson, affirming, p 8 ,quoting Judge Hand). The question of the gravity of defendant’s action and the potential for evil is itself questionable in this aspect. The defendant’s offense is that he has revealed that the CIA uses the water boarding technique, so at the greatest, the danger that has been caused is embarrassment to the Government on its use of techniques which it has publicly condemned. This hardly warrants a danger that can be classed as a “clear and present danger” to the nation, such as that which is posed during a war situation. The potential for such danger appears improbable in the context of the defendant’s actions. The defendant has a right to express his opinions freely on his disagreement with the policy of the CIA; he is attempting to reveal the hypocrisy of the Government’s actions. As Justice Holmes has also pointed out, defendant cannot be indicted for his ideas and opinions, if in the long run, defendant Washington’s indictment of the Government’s hypocrisy is also to be shared by a majority of others, then such expression must be allowed free rein. Applying Justice Holmes’ criterion that in every case, the “words are used in such circumstances and are of such a nature as to create a clear and present danger.” (Quoted in Dennis, Vinson, Affirming, pg 7). In this case, the nature of defendant’s offence is to reveal the government’s hypocrisy. The nature of the statute itself is therefore questionable, since it imprisons the defendant for a free expression of his opinion in a situation where no imminent danger is posed to the country by his revelation. The constitutionality of the Official Intelligence Secrets Act needs to be questioned. “When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit.” (Dennis, Frankfurter, concurring, 11) The statute is exactly of such a nature and therefore its validity and imprisonment of the defendant under it needs to be questioned. Affirming Opinion: The appellants in this case have filed suit to overturn the injunction that has been granted by the lower courts against the publication of a memorandum of the Department of Justice on their website “To tell the Truth”. Section two of the Official Intelligence Secrets Act of 2008 specifically authorizes such action against any party that seeks to publicize information. While the freedom of the press is a basic, fundamental right, it is not absolute and unrestricted. This absolute right to know is often claimed by the Press and any attempts to restrict it in any fashion through prior restraints are automatically and quickly rejected by the Courts, demonstrating “our universal abhorrence of prior restraint.” (New York, Burger, Dissenting, pp 7). But the First Amendment right is not absolute, the freedom of the Press is not absolute and the imposition of prior restraints does not allow for the merits of the issue to be debated and adjudicated in a court of law. The contention of the Government in this instance is the dangers that could be posed to national security by way of hampering the Government’s efforts to extract information from terrorists. When the publication of material by the Press could constitute a “grave and immediate danger to the security of the United States” (New York Times, Marshall, concurring, p 6), and when statutory provisions in place mandate such action, then it may be necessary to carry it out. When a statutory provision exists within the OISA 2008 which mandates the grant of an injunction to the Attorney general in exactly such an instance as that which has arisen in this case, it is the duty of the Court to execute the law. It is not for the Court to make laws, but rather to carry them out; hence the grant of an injunction to the Attorney General is a proper exercise of the law. The right of the freedom of the Press and it’s right to know must be balanced against the provisions in the law which have been mandated by Congress. The contents of the documents must also be taken into consideration in this instance, and adequate time taken for a deliberation of the potential implications of the revelation of such information on the general public and on issues of national security before a decision is made to deny the legal provisions and prevent the Attorney General’s exercise of his right to an injunction. If, in this instance, the court intervenes to prevent the issue of an injunction in this instance as mandated by the law (the OISA 2008), it would constitute direct interference with the separation of powers between the executive and the judiciary. In effect, it would be “preventing behavior that Congress has specifically declined to prohibit” through its passage of the OISA. (New York Times, Marshall, concurring, pp 6). The freedom of the Press is not unlimited and the issue must be considered in more depth before the injunction is overturned by this Court. Dissenting Opinion: The right to freedom of speech is one of the fundamental rights that are protected by the Constitution. In reference to injunctions against media sources, it has been held that “every moment’s continuation of the injunctions” would in effect amount to “flagrant, indefensible and continuing violation of the First Amendment.”(New York Times Co, Black and Douglas, Dissenting, pp 1). The purpose of the First Amendment was to protect the right to freedom of speech and to curtail the power of the Executive. By allowing the Government to enforce an injunction against the website which seeks to report the facts and present the details of a Memorandum which has been presented to it, the very purpose for existence of the First Amendment would be belied. The free press performs an essential role in our democracy and one of those is to “expose deception in Government.” (New York Times Co, Black and Douglas, Concurring, pp 2). In this instance, the duty of the free Press would certainly extend to exposing hypocritical standards that are being adopted by Government and preventing them from doing something that is so flagrantly in contravention of the principles of democracy for which this country stands. The question of national security is the one that is being relied upon to justify the actions of Government in suppressing the publication of the Justice Department Memo. However, such security can also be “anti-democratic…..open debate and discussion of public issues are vital to our national health.” (New York Times, Douglas and Black, concurring, pp 3). By seeking this injunction, the Government is in effect, restricting the free and fair debate on the question of whether water boarding should be used by the Government as an interrogation technique, which is directly in violation of the First Amendment. Furthermore, the First Amendment does not condone any form of restriction of the right to free speech on the grounds of potential compromising of the national interest. This may arise as an issue “only when the nation is at war”(New York Times, Brennan, Concurring, pp 3). But in this instance, the war on terror may not strictly qualify as a case where the nation is at war, or even an instance where the “revelation of these documents will do substantial damage to public interests.”(New York Times, Justice White and Stewart, concurring, p 5). Where the question of a prior restraint such as an injunction is concerned, it is necessary to provide heavy justification before the freedom of the press can be over-ridden or curtailed. In this instance, such a justification does not appear to restrict, for restricting the freedom of the website to publish material that has been revealed to it, which show that the Government may be engaging in deceptive practices. The nation is not actively in a war situation and there does not appear to be a “grave threat” posed to national interests of the extent to merit the issue of an injunction in this case at the expense of the freedom of the Press. Such justification does not exist and the injunction needs t be lifted immediately to avoid repressing the fundamental right to freedom of speech of the Press. Read More