War & Press Freedom: The Problem of Prerogative Power

War & Press Freedom: The Problem of Prerogative Power

War & Press Freedom: The Problem of Prerogative Power

War & Press Freedom: The Problem of Prerogative Power

Synopsis

In the two centuries from the ratification of the First Amendment in 1791 through the Gulf War in 1991, the American press lacked an adequate right to analyze and report on the nation's armed conflicts. When restrictions were challenged as violations of the Constitution, military regulations and federal laws were justified as necessary under the "higher law" of survival Is there law more important than the Constitution which allows prerogative powers to be used in a time of war or national crisis? This groundbreaking and provocative study, examining law and history over these two hundred years, argues that press freedom cannot and should not be suspended during armed conflict.

Excerpt

The theory of democracy suggests that if citizens and their lawmakers are well informed and able to debate issues, they will make better decisions. Yet, often in war, the most serious test of reasoning and sacrifice any society faces, freedom of expression contracts while uncritical acceptance of government decisions expands. Authorities provide their own versions of events, frequently without an adequate opportunity for independent verification. Official and unofficial attempts are made to restrict the flow of information and to rouse public emotions. Dissenting views are condemned and may be punished. For reasons ranging from panic to selfinterest, politicians, military officers, and others seek to limit public discourse and to direct public opinion.

This book ponders the extent to which such largely closed systems of communication have been attempted in United States history and have gone beyond justifiable wartime security needs and invited the abuses long associated with autocratic, secretive government. I had originally planned to write a general history of the gradual demise of the country's founding principles of press freedom, but, realizing how many instances of the "death of a thousand cuts" had come from war, I decided to focus on how broad notions of "self-preservation" and "national security" have weakened the most important liberty in the Bill of Rights. I contend that suppressive policies in times of armed conflict usually have been unconstitutional, unjust, and impractical. Part One (chapters 1, 2, and 3) examines the friction between the absolute press clause of the First Amendment and the prerogatives assumed by the executive and legislative branches to restrict statements of fact and opinion about war. Part Two (chapters 4, 5, 6, and 7) considers the impact of wartime politics and paranoia on freedom of expression from the ratification of the First Amendment in 1791 through the Gulf War in 1991. Part Three (chapter 8 and the conclusion) analyzes the roles played by the media in wartime and discusses the risks that propaganda and secrecy create for a democratic system.

The following chapters offer evidence that the government, by withholding information, policing thought, and spreading propaganda, frequently acts as if it is necessary to destroy democracy in order to save it. Truth has been said to be the first casualty in war, but perhaps it is more precise to say that the First Amendment has been the first casualty, followed closely by the marketplace of ideas where truths, or at least better understandings, are more likely to emerge than in a system of authoritarian control. Benjamin Franklin may have been exaggerating when he remarked . . .

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