Free Speech Issue
Should the government be able to infringe upon free speech by classifying anything it wishes as a state secret or threat to national security? When does the classification of embarrassing facts or information critical of governments inner workings go too far?
Issues of national security should be of concern to all citizens in a democracy. Though we cherish the rights of free speech, there are times when the exercise of this right could have desperate consequences to our safety. The courts have to balance speech rights with the need to preserve our national secrets and safety. In cases such as Near v. Minnesota, Schenck v. United States and Yates v. United states the courts have said that it is permissible to restrain and/or censor speech which would
- Threaten to overthrow the government by force,
- Reveals sensitive military information,
- Has the potential to create imminent lawless action,
- Expose sensitive information which could be used as a weapon against us, and
- Creates a clear and present danger.
National Security and Free Speech
In 1971, during the Viet Nam War, Daniel Ellsberg released the Pentagon Papers to the press. These papers, which were classified as top secret, had no little or no military value but contained information embarrassing to the government about our involvement in Viet Nam.
A more recent example is WikiLeaks, a website that posted more than 76,900 records detailing American involvement in the Afghan war. These documents indicate that hundreds of civilians have been killed in unreported incidents and are replete of governmental incompetence. Julian Assage, the owner of this website has been hunted and prosecuted for his involvement. The question we need to ask here is this, "Did Assange compromise America's national security or just reveal information that is embarrassing to us--or perhaps both?" Secretary of Defense Robert Gates has recently stated that the site did not disclose any sensitive intelligence sources or methods.
Reporters are frequently denied information they seek using the Freedom of Information Act (FOIA). As Examples, The Electronic Privacy Information Center (EPIC) lists the following most recent:
- Refusals by the Justice Department to supply information about the legal opinions of warrantless wiretapping conducted against citizens of the United States. You may recall the embarrassment the Bush administration felt when it was discovered that they had conducted hundreds of thousands of "illegal" wiretaps by never seeking court permission--all under the guise of national security.
- Refusals by Homeland Security to provide records concerning radiation emissions and exposure associated with airport full body scanners.
- Refusals by the Inspector General to release information concerning the legal opinions that was used to justify the President's Surveillance Program.
- Refusal by the National Security Administration to provide memos related to its interception of phone calls and private e-mail messages of Americans. Recently, the New York Times reported that the NSA's activities went beyond the legal limits established by the Congress last year.
- EPIC v. DOJ: Court Rejects Secrecy Claims in FOIA Case. A federal district court today ordered (pdf) the Department of Justice to be more forthcoming about the basis for withholding documents concerning the President's domestic surveillance program. In December 2005, immediately following the press report of the program, EPIC requested legal opinions and related documents that were prepared to justify and monitor the warrantless surveillance program. The American Civil Liberties Union and the National Security Archive also submitted FOIA requests. A federal court has now ruled in EPIC v. DOJ (pdf) that the Department of Justice's basis for withholding the documents were "too vague and general," and that the FBI's justifications, in particular, are "wholly inadequate." By October 12, the Department must provide far more detailed information to EPIC and the other plaintiffs. (Sept. 5, 2007)
Free Speech Exception
When information is considered to be a threat to national security, the government can limit free speech.
The government needs the ability to limit free speech to protect its citizens and national security. However, there is a temptation to overly classify information as secret when it contains information that is embarrassing or critical of its inner workings. People who love free speech need to understand the important tension that must take place in a democracy to allow its leaders to classify anything it desires versus the rights of its citizens to be properly informed so that they can make good choices for maintaining democracy.