A QUARTER OF a century almost exactly separates the Pentagon Papers case of 1971 and the recent unanimous decision of a three-judge federal panel in Philadelphia overturning the government's attempt to outlaw pornography on the Internet. The two cases are victories for the First Amendment, not for any particular political ideology.
Although the U.S. will likely appeal the Internet decision overturning most of the Communications Decency Act (CDA), the Supreme Court will confirm the lower court's decision because this is a First Amendment court.
Just a year ago last June, in an opinion written by the court's most conservative justice, Antonin Scalia, the court unanimously ruled that the First Amendment protected the right of St. Patrick's Day parade organizers in Boston to exclude anyone whose messages they did not wish to convey, such as gay, lesbian and bisexual marchers who wanted to broadcast their sexual preferences. This year they were banned from the parade.
More than ideology
Judge Stewart Dalzell emphasized this point concerning the CDA: "Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects."
As Justice Scalia's implied last year, these words do not reflect an ideology of liberalism against conservatism. They reflect the words of one of the court's most distinguished and conservative former members, John Marshall Harlan. In 1971, just before the release of the Pentagon Papers decision, Harlan wrote, "That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.''
If the First Amendment means anything, it is that Congress may not make laws restricting free speech or a free press without some compelling interest. While pornography and obscenity rate hardly any protection under the First Amendment, the CDA was so vague and overbroad that almost all speech could be barred. Congress made no attempt to define words and phrases like "obscenity" or "patently offensive." At the very least, the court said, speech on the Internet deserves the same protection afforded to newspapers and magazines.
Censorship then and now
Twenty-five years ago, this very question arose over national security. Beginning on June 13, 1971, the New York Times printed excerpts of a 47-volume study, secretly passed to its editors by Daniel Ellsberg, called "The History of U.S. Decision Making Process on Vietnam Policy." The materials provided a devastating critique of American unwillingness and ill-preparedness to win the Vietnam War. Five days later, the Washington Post began to print parts of the study, too.
The U.S. asked federal courts in New York and the District of Columbia to enjoin the newspapers from publishing the material: the Second Circuit in New York stopped the Times, but the D.C. Circuit allowed the Post to continue.
In one of the swiftest cases ever to move through the Supreme Court, the justices heard oral arguments on June 25 and rendered their 6-3 decision just five days later, on June 30. (Justice Harlan dissented not because his views of the First Amendment had suddenly changed, but because he thought the pace through the courts was "irresponsibly feverish".)
The court held that the First Amendment does not allow government to restrain the press prior to publication without a compelling interest. Now, 25 years later, three federal judges argue that no matter how well-intentioned the CDA is, it constitutes "state-sponsored censorship.'' Judge Dalzell wrote that should the law stand, "I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional.''(Ironically, two days after the court's decision, a front page story about African female genital mutilation appeared in the New York Times.)
This is the not the first, nor the last, time for an assault on the First Amendment. Those who claim they want to save the people from themselves will always argue that speech and the press should be regulated, restricted or even banned. But citizens have a right to know what their government is doing in most instances, just as parents have the responsibility to teach their own children family values. The true power of the First Amendment remains America's best force against authoritarian and tyrannical rule.
Jack Fruchtman Jr. teaches constitutional law and politics at Towson State University.
Pub Date: 6/25/96