From its inception, the First Amendment has never been understood to mean what it says — just ask the Times, a notorious champion of speech-stifling campaign finance “reform” as well as “hate speech” restrictions. Where speech is concerned, civil libertarians and devotees of the “living Constitution” see the First Amendment as an “aspiration, to be given meaning over time,” as the University of Chicago’s Geoffrey Stone has put it.
There is surely something to this. Yes, the conceit that we all have a right to our opinion is written into the American DNA, and the notion that we are also entitled to our own facts is a staple of modern political discourse. Nevertheless, the reality is that Congress has enacted numerous laws abridging speech and publication since the Constitution’s adoption. Despite the First Amendment, many categories of speech have always been thought subject to regulation. Furthermore, the same Constitution has always made aiding and abetting enemies of the United States — such as by the passing them information in wartime — punishable as treason.
Free speech, like every other right, does not exist in a vacuum. It coexists with, and must make necessary accommodations to, other rights and privileges. These include our national security, without which the protection of speech and the press are not worth the parchment on which they are guaranteed. Accommodation is the business of politics, in the best sense of the term — the sense that honors individual liberty but imposes limitations essential to the common good, subject to change by the American people based on their sense of the common good, the public interest.
Thus, to the extent there is a public “right to know,” there must also be limitations on that right, fixed in accordance with the kind of country the public wants the United States to be. If we are serious about preserving our nation against enemies who would destroy us, we must be able to punish the communication of sensitive information to those enemies. If we want to win wars, we must punish those who assist our enemies. And if we want to be a dominant player on the world stage, we must punish those who make it perilous or impractical for important international actors to cooperate with our government.
It sounds simple, but it’s not. The trade-offs can be excruciating. Of course we want to preserve our nation, but those who would like to destroy us may not always be a realistic threat. Of course we want to win wars, but our war aims are not always so clear — many Americans who want to defeat al-Qaeda are indifferent or opposed to “Islamic outreach” and nation-building in Islamic countries, policies the government has conflated with war-fighting. As for dominance on the world stage, Americans right and left are increasingly skeptical: desirous of security from foreign threats in an increasingly dangerous world, but mindful of George Washington’s well-founded caution against too much foreign entanglement.
Wherever there is an obvious public interest, it is a fact of life that government officials will be apt to exploit it as a pretext for suppressing information that ought to be part of the debate over what exactly is in the public interest. Here’s the problem: The New York Times
is just as apt to use that needed debate as a pretext for publishing information whose disclosure undermines the obvious public interest.
In the scheme of things, though neither is desirable, harming the public interest is worse than warping the debate. Furthermore, for all the venality of government — for all the officials who want to suppress information because its disclosure will be embarrassing, rather than harmful — government is at least accountable. Prosecutions against those who compromise national secrets are open to public scrutiny. Congress can convene hearings to demand answers from executive agencies that withhold information and to expose scandals. Both the president and Congress answer to the voters, who can remove them if they their abuse power or abide its abuse.
To whom does the New York Times
answer?— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.