July 27, 2005

Someone Else's National Security

by PG

I suppose the First Amendment caselaw is pretty well settled on when the media can publish material that the U.S. government claims could be detrimental to national security, though the Fourth Estate's reflexively obedient stance may be wearing off enough by now that some cases will arise in the next couple of years. SCOTUS hasn't had reason to cite the Pentagon Papers case since shortly before 9/11 (Bartnicki v. Vopper; Rehnquist, Scalia and Thomas in dissent).

However, I'm not aware of any cases on what another government can do to prevent the American media from disseminating information. ABC News obtained pictures of unexploded bombs discovered in a car in Luton after the July 7 attack on the London Underground, and showed them last night. British broadcaster Sky News used ABC's images contrary to the police's wishes.

In a note to newsdesks today, the Metropolitan police said it was "aware that ABC News has obtained a number of unauthorised images relating to the investigation into, and the crime scenes from, the London bombings of July 7 from a third party.

"We are requesting in the strongest possible terms that media organisations DO NOT publish these images or any similarly unauthorised images because they may prejudice both the ongoing investigation and any future prosecutions."

The Times of London ran a picture from and a transcript of the ABC News program, so apparently this is not a request that anyone is taking terribly seriously. Still, I wonder how a suit by the British government or some subentity thereof, such as the City of London, against an American news organization to prevent publication would play out. Would the U.S. courts be obliged to assign the same level of importance to non-Americans' security? would an action brought in a British court have to be sustained by the American government? (I don't know what the relevant international law and treaties on this would be.)

July 27, 2005 06:05 PM | TrackBack
Comments

Uhh, well-settled? Do you mean to say you can find a clear rationale and doctrine in Pentagon Papers?

Posted by: Will Baude at July 27, 2005 09:30 PM

I knew with nine opinions, someone would have to ask that. "Well-settled" is a misleading term to use; I intended it more in the sense that "we haven't seen the issue of 1st A. v. Nat'l Sec. addressed directly since then," rather than in a sense that the precedent would provide clear guidance for a future case.

NYT v. U.S. extended the heavy burden of proof required for prior restraint of previous cases that had dealt only in fairly local harms such as privacy, reputational damage or communal morality, to the much larger harm of threats to national security.

All three dissents spend more time bitching about unseemly haste than they do passing judgment on the case itself, and only Harlan's really stakes out a ground contrary to the opinion's holding. He says that the judiciary should not demand a burden of proof but should be deferential to the decisions of appropriate Executive officers when it comes to foreign affairs -- which essentially nullifies the First Amendment when "the subject matter of the dispute does lie within the proper compass of the President's foreign relations power."

This is complicated slightly by the issue of domestic terrorism, however; suppose that attempts to blow up the DC Metro actually were the fault of McVeigh/ Rudolph types rather than bin Laden. There's no foreign relations power here, so Harlan's dissent would put us in the odd position of having publication of potentially endangering information allowed or prohibited depending on the passport of the attackers. We're in a "war on terrorism," but this is generally recognized not to apply to rightwing whitefolks.

Thus the NYT holding, such as it is, that these cases must be decided based on the degree of the threat, instead of on its source, seems to me far more sensible in its application for the modern era (I can't say "post-9/11" because OK City and Olympic Park both predate) than the Harlan dissent does.

Posted by: PG at July 28, 2005 09:37 AM
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