How Free Can the Press Be?

Newspaper Research Journal, Spring 2004 by Harrison, Wm Dale

HOW Free Can the PreSS Be? by Randall P. Bezanson (University of Illinois Press, 2003) 253 pages, $34.95.

Surely the most egregious form of censorship is prior restraint at the hands of government. Constitutional precedent stacks up sturdily against pre-emptive suppression that short-circuits the marketplace of free thought. Ideas must only be squelched by better ones in that quintessential and unruly contest of competing thought.

But it is precisely this robust intellectual marketplace that Randall P. Bezanson seeks to cheapen in "How Free Can the Press Be?" Bezanson attempts to obscure the stark line between prior restraint and post-publication regulation of the press with a red-herring appeal to America's affection for privacy rights. Subtlety reigns throughout the text as Bezanson sprinkles shadows of doubt on government integrity that impart a shallow sympathy for press freedom.

The clear purpose of the book is to re-examine the decision and alter the standards applied in the Pentagon Papers. Bezanson urges us to take a more lenient view of prior restraint. Several privacy cases are curiously included.

But these privacy cases are more than mere distractions from the chief goal. Bezanson turns the prohibition on government censorship in the First Amendment into an unnamed privacy doctrine, one that could be coined: private expression rights.

There are some worthwhile offerings. Bezanson serves up an interesting collection of transcripts, including portions of the Richard Nixon tapes, court depositions and oral arguments. Ample space is given to details of U.S. Supreme Court appointments, but one frustrating trait of the book is the failure to plainly identify the justices who are speaking in transcripts.

Bezanson rejects the idea that prior restraint holds "special significance." he writes, "The only legal distinction between a law enjoining publication of a secret in advance and one that imposes criminal punishment after he or she published the same secret is timing."

No, the difference is this: A law that prevents publication is one over which government holds absolute hegemony. One that punishes after publication can only do so after a public airing and with the public eye on the hands of government.

The book begins with a relatively scholarly examination of the Pentagon Papers and meanders through several sensational press v. personal-privacy cases.

It lands with a polemic thud.

Bezanson builds the foundation for his case on the - arguably - unduly heavy burden placed on government to show cause for seeking an injunction against publishing the Pentagon Papers. Instead of the strict scrutiny triggered by prior restraint, he argues the burden should be a far less exacting "intermediate scrutiny." he treats the fact that the Pentagon Papers ultimately failed to pose any threat to national security as beside the point, though this clearly supports use of the strict-scrutiny standard.

Bezanson's expansive latitude of intermediate scrutiny would have clearly enjoined publication. The length of the Pentagon Papers - alone - he writes, was enough to meet this buoyant burden.

Here is Bezanson's intermediate scrutiny in play: "Under such a standard the Solicitor General could make an argument for government without blushing: forty-seven volumes of classified material were, by virtue of bulk alone, likely to present serious national security risks."

And if sheer bulk were not convincing enough, he finds it sufficient that "the relevant agencies of government-the CIA, State Department, Defense Department-had all expressed great concern, as had the president of the United States."

Strict constitutional scrutiny is applicable to the First Amendment for Bezanson, but it is reserved for imaginary private expression rights. And to further the aberration, strict scrutiny is applied to the actions of the press and to publication - not to government and a prohibition on censorship. Here enters the case that Bezanson casts as a First Amendment guarantee of privacy rights.

In 2003, the U.S. Supreme Court tossed out prosecution of a radio station that aired an illegally recorded telephone conversation between union members discussing contentious contract negotiations. WILK deemed the conversation a matter of public interest because it involved negotiations with a public school board. For Bezanson, the case of Bartnicki v. Vopper represents the failure of government to honor the author's requirement for government to prevent the publication of speech that is private - as a function of the First Amendment.

Bezanson's formula for a new First Amendment is now complete. It requires the press to show a compelling reason to publish. Government designs statutes that gently steer the wayfaring press away from trampling on individual privacy. Should the press misstep and fail to meet its burden of proof to justify publication, government is again there as ultimate adjudicator.

Applied to the Pentagon Papers, this produces precisely the result the author desires. The burden of proof is shifted to the press. Prior restraint is no longer an issue because it is in the fabric of statutory law that prevents publication of anything government classifies as secret.