Saturday, March 21, 2009
Dissent
Beside the issue of the case being rushed, there was also the argument of whether or not the First Amendment should be viewed as absolute. Many of the consenting Justices, and previous precedent has usually ruled in favor of the First Amendment being an absolute, but should this continue? Chief Justice Burger, in his dissenting statement said “In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government, and, specifically, the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances -- a view I respect, but reject -- can find such cases as these to be simple or easy.” (http://www.lectlaw.com/) Should we maintain the First Amendment as absolute or should we look at it differently now that things have progressed? Especially as we look today to television and the internet. Did the Founding Father’s ever imagine that information could travel so far so fast?
My Argument
Rule of Law
“In New York Times Company v. U.S., the Supreme Court held that the government must meet a heavy burden of justification before it can restrain the press from exercising its First Amendment right to publish.” (http://law.jrank.org/) Basically, the implied powers of the President and the Executive branch do not give him the power override the First Amendment unless it can be proved that it is absolutely necessary to the safety of the American people.
Reasoning of the Court
Justice Brown and Justice Douglas opinion was in concurrence. They believed that the First Amendment was put into place to stop the government from laying restrictions on the people and the press from spreading information that might be found embarrassing. The Nixon Administration argued that the framers of the Constitution did not intend the First Amendment to make it impossible for the Executive branch to protect the security of the United States. The Administration felt that the government should be allowed to pass laws that would allow them to limit publication and abridge the freedom of the press in the name of “national security”. Justice Brown however stated “To find that the President has ‘inherent power’ to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make ‘secure.’ No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.” (http://www.law.cornell.edu/) Justice Douglas added, citing from New York Times v. Sullivan that Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions, there should be ‘uninhibited, robust, and wide-open’ debate.
Justice Brennan was also in concurrence, but felt it necessary to express his views separately. He stated that any previous precedent set for the government to halt publication was for during times of war and only if the information told the enemy about our current military strategy or about the current locations of our troops, which are obviously very damaging to war-time efforts and can put our soldiers in extreme danger. Also, he stated that if the Executive branch had wanted an injunction placed on the paper to keep it from publishing the information, they have to give the courts enough time to decide if this was what they felt to be a threat to national security. However, in this case, the Nixon Administration had pushed that the injunctions be put in place first and then the case decided while the papers were blocked from publishing the information. “And, therefore, every restraint issued in this case, whatever its form, has violated the First Amendment -- and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.” (http://www.law.cornell.edu/)
Justice Stewart in concurrence. His opinion was that since it recent years the Executive branch had been granted many powers higher than that of the other branches, especially in regards to foreign affairs, that a strong press was needed to keep the people informed, so they that they can act as a check for the government. “For, without an informed and free press, there cannot be an enlightened people.” (http://www.law.cornell.edu/) He also understood that the foreign governments needed to feel that they could conduct business with our government with some sense of confidentiality, but that this case was not about that, but about what power the Executive branch had over the power of free speech.
Justice White share much of his opinion with Justice Stewart stating that despite the fact that he believes that these papers could have some negative effect on how the Administration would viewed, he felt that it was their duty to protect the rights held under the First Amendment and that the press has always had extraordinary protection under said rights in previous precedent, and that the Executive branch could only halt publication if the information threatens "grave and irreparable" injury to the public interest, which he felt these papers did not.
The final Justice that was in concurrence was Justice Marshall. He stated that while it may be implied that the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country, that it would be unconstitutional for the courts to impose such a ban when Congress itself had refused to pass such a law.
Decision of the Court
The Naked Nymphomaniac
Today in class we watched a film that was based around Justices debating the First Amendment and pornographic material. In the film, the main argument was between a very liberal Justice, and a very conservative Justice who also happened to be the first female Justice. I have to admit, I usually stick to the side of freedom of speech as protected under the First Amendment, so in many ways, I agreed more with the liberal Justice (though not so much his attitude). I think the First Amendment is a tricky one, and issues regarding it can get pretty controversial. Generally the idea is it does not protect against something that can cause harm to another, but where do we start drawing that line? I think in many ways, that’s where the bulk of the issues come from. Like the Conservative Justice was trying to say, that is harms people in the psychological sense. That it harms the way of life of the American People. But who is the one that ultimately decides what is right or wrong in that sense? Is pornography wrong because it’s truly harmful or do we only see it as such because our Puritan background deems that nudity and sex is shameful and needs to be hidden away? I think ultimately it comes down to the individual, or in the case of a child, the parent or guardian to determine what is right or wrong for them.
As far as the issue of a woman on the Supreme Court, is because of the issue of woman’s rights. By allowing a woman on the Supreme Court, in a way can make the American people feel that they many different views and beliefs are being drawn upon for these decisions. While it does seem kind of unfair that they are only allowing woman candidates to take the place of the female Justice, I can understand it from the view that they want to let the American people feel that there isn’t a sexist issue. If a case that may have more bearing on a woman than a man, such as abortion, were to come to the Supreme Court, having a woman there would mean that it isn’t being decided by people who have no connection to its implications.