A Liberal Communitarian Approach to Security Limitations on the Freedom of the Press

By Etzioni, Amitai | The William and Mary Bill of Rights Journal, May 2014 | Go to article overview

A Liberal Communitarian Approach to Security Limitations on the Freedom of the Press


Etzioni, Amitai, The William and Mary Bill of Rights Journal


Introduction

In 2013, following the publication of classified information gleaned from top-secret documents leaked to the press, the U.S. government conducted several investigations into these unauthorized disclosures.* 1 The government eventually extended these investigations to the press-collecting phone records and subpoenaing reporters-not to prosecute the reporters, but to identify the leakers.2 These actions were widely criticized by the media, civil libertarians, liberals, and others who decried the government for constraining freedom of the press.3 At the same time, government officials and their defenders argued that clamping down on leaks was necessary in order to preserve ongoing national security efforts.4 This Article asks: What normative framework should one apply in finding the proper balance between the freedom of the press and national security? What effect, if any, should the change in historical conditions have on this balance?5 When highly sensitive national-security information is leaked to the press-who has the authority to render the weighty decisions about whether to publish such information?6 To what extent has the publication of classified information damaged national security?7 To what extent have the subsequent leak investigations undermined freedom of the press?8 What mechanisms are available if the balance between liberty and security needs to be recalibrated?9 What steps can be taken to narrow the conflict between freedom of the press and national security?10 What role must moral dialogues play before major legal and institutional changes can be introduced?* 11

This Article argues that, although the harm to national security caused by published leaks seems greater than much of the media is willing to acknowledge, there are other ways to protect the public's right to know and the press's right to publish than those that are currently in place.

I. Advocacy Versus the Communitarian Approach

A. The Advocacy Model

Deliberations about public policy often follow the advocacy model characteristic of the American courts. In this model, each side-of which there are only twopresents its interpretation of the facts in the way that most strongly supports its position.12 The case of Chelsea (formerly Bradley) Manning, who was charged with leaking hundreds of thousands of secret military documents to WikiLeaks in 2010, illustrates this mode of deliberation.13 The defense presented the young soldier as "naive but good-intentioned."14 To her champions in the media and on the left, Manning is a heroic whistleblower and a victim of government overreach.15 By contrast, the government contended that Manning is a traitor, guilty of aiding the enemies of the United States.16 The prosecutor asserted that Manning "used [her] military training to gain the notoriety [she] craved."17

These positions reflect the state of the debate over government secrecy more broadly. Law Professor David E. Pozen notes that,

[f]or every governmental assertion of leaks "that have collectively cost the American people hundreds of millions of dollars, and . . . done grave harm to national security," one finds the rebuttal that "there has not been a single instance in the history of the United States in which the press's publication of a 'legitimate but newsworthy' government secret has gravely harmed the national interest"-indeed, that there have been few destructive leaks anywhere in the world.18

Many public-policy deliberations follow the same pattem of strong, often extreme, one-sided advocacy between two conflicting positions. Key examples include the debates between pro-life and pro-choice advocates;19 those who favor gun control and those who defend an individualized right to own guns;20 and free market champions and those who favor strong regulations.21 Data show that American media and politics have become more polarized in recent years-that is, they are drawing more on the advocacy model and focusing less on finding common ground, forging compromises, and devising "third way" solutions. …

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