Ban on Photos of War Dead Prompts Important History Lesson

By Davis, Charles | The Quill, September 1, 2004 | Go to article overview

Ban on Photos of War Dead Prompts Important History Lesson


Davis, Charles, The Quill


Two simple words: "seditious libel."

They invoke images of redcoats, Whigs and Tories, tar and feathers.

We fought the War for Independence, in part, to rid ourselves of that odious threat, through which monarchies stifled any expression, true or false, factual or opinionated, and which dared challenge the omnipotence of the representatives of the throne.

Now photographs of military coffins draped in the stars and stripes, of Iraqi prisoners humiliated by American GIs and of the war dead on "Nightline," draw criticism, repression and in the case of the Dover war dead, an outright government ban. It is worth remembering seditious libel's inglorious role in our nation's history and its poisonous tendency to treat truth and falsehood with equal disrespect - and to brand legitimate criticism of government policy at a minimum unpatriotic and worse, treasonous.

The freedom of the press guaranteed by the First Amendment can be threatened in many ways. The most direct threat, rare in our constitutional scheme, may be either censorship or mandatory licensing by the government in advance of publication.

Of particular importance to our revolutionary founders was the rejection of the very idea of seditious libel: the idea that one could libel the government. Seditious libel - a remnant of law left by the crown - was broadly defined as anything that "excited disaffection" against constituted authority. Under the doctrine of seditious libel, both true and false criticism of the government was considered libel. In fact, legal thought of the pre-Revolutionary era proclaimed that "the greater the truth, the greater the libel."

Early in our nation's history, partisan debate between Federalists and their opponents generated a shameful episode during which the United States government rekindled seditious libel to punish critics of the administration.

Seditious libel emerged again in World War I, as the government again punished opponents of the administration, this time citing wartime morale as justification for a series of restrictions regrettably aimed at those merely expressing their heartfelt opposition to the war.

First Amendment protections broadened with time to protect such speech, because the courts grew increasingly uncomfortable with the concept of seditious libel and with vague definitions of incitement that hinged on the "tendency" of words. Likewise, the courts began to parse government regulations focused on controlling what people say, as opposed to reasonable measures aimed at policing the time, place and manner of speech.

Government regulations based on content are sustained only if they pass the "strict scrutiny" test, in which courts ask whether the restriction is necessary to achieve a compelling governmental interest, and whether other less destructive means of First Amendment rights exist. For the state to restrict expression based on content alone requires the direst of circumstances.

When the state seeks to bar expression, it must offer much more than broad pronouncements about "protecting morale" or "sustaining the war effort."

Such was the rationale of the World War I Espionage Act prosecutions, a relic in First Amendment terms but analogous to several recent developments.

This history lesson brings us full circle to the Defense Department ban on showing images of the return of the bodies of soldiers killed in action since the start of the war in Iraq.

The government edict - issued in March - stated that there would be "no arrival ceremonies of, or media coverage of, deceased military personnel returning to or arriving from" air bases.

The ban recently was circumvented after thememoryhole.org, a Web site dedicated to combating government secrecy, mounted a successful legal challenge under the Freedom of Information Act. The reason for the FOIA disclosure was remarkably simple and says much about the propriety of the ban itself: the Freedom of Information Act contains no exemption that would cover the photos. …

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