1st Amendment Champion Hugo Black Rebukes Team Obama From the Grave

His concurrence in the Pentagon Papers case is worth revisiting as DOJ tries to criminalize national security journalism.
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Supreme Court Justice Hugo Black used his concurring opinion in The New York Times Company vs. the United States (the Pentagon Papers case) to reflect on the 1st Amendment's guarantee of a free press, its inviolability, and the wrongheadedness of those who'd abridge it in the name of enhancing "security." The case was largely about prior restraint of publication, but his analysis goes much farther. His arguments are worth revisiting as the Obama Administration asserts that journalists break the law when soliciting and obtaining classified information.

What follows is an excerpt from his concurrence.

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge.

Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history.

Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood:

"Congress shall make no law... abridging the freedom... of the press...."

Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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