Speaking Freely

Jack Shafer has an interesting piece in Slate a while back regarding a possible prosecution of the New York Times under the Espionage Law of 1917 for revealing BushCheney’s warrantless evesdropping. The Espionage Law of 1917 as amended in 1950 makes disseminating classified information to unauthorized parties or publishing same a criminal offense. Using this law to prosecute the Times would raise a host of free speech and other legal issues. Those issues are a big reason why no case has ever been brought under this law.

National security has always tested America’s commitment to free speech. In times of imminent danger and peril, statements and published materials may endanger the nation or its forces. “Loose lips sink ships” and all that, where the damage is clear and direct. But when the danger is less imminent, more abstract free speech and press should always prevail. This Republic is more secure with free speech and press than it will ever be with out these fundamental freedoms.

Free Speech is one Constitutional right that has a clear lineage from the Framers. Speeches given in public settings and published in broadside were the essential means of communicating during their time. Hundred of small presses carried accounts of events and announced others. All this at a time when this nation was under attack by the world’s major power. The Framers recognized the power and resonance of speech. No wonder Speech, along with Assembly and Religion, is among the first rights protected by the Bill of Rights.

Knowing that speech can be dangerous, I draw the line where the danger and risk posed by speech or publication threatens the exercise of American Constitutional liberties. Unless a threat puts our ability to enjoy our fundamental liberties at risk, it does not rise to my standard for restricting speech or publication. Osama bin Laden and other terrorists threaten us attack but whatever small scale havoc they can inflict poses little real danger to America’s Constitutional order. Bin Laden threatens America economically by disrupting our energy supplies but this nation is not at such risk as to toss away two centuries of free speech.