From 2006 through 2012 the online source Wikileaks has published a great number of classified documents. Needless to say that governments affected were furious. They saw the release of classified information as outrageous. The supporters of Wikileaks claim that the publications are a matter of freedom of speech. In a wake of the Wikileaks scandal, the question of freedom of speech boundaries became especially topical. Freedom of speech in the context of national security was discussed at different forums, conferences, informal meetings, among friends and colleges. This paper is an attempt to discuss relations between freedom of speech and national security.
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Freedom of Speech in the United States: The First Amendment
In the United States freedom of speech is guaranteed by the First Amendment. In particular, the First Amendment prohibits Congress to pass any law “abridging the freedom of speech, or of the press”. Thus, one may observe that the First Amendment introduces some general principles of freedom of speech. It even protects the speech most people do not like. Thus, in 1977 the National Socialist Party of America, the former American Nazi Party decided to conduct a parade the city of Skokie which was a home for many Jews. The American Nazi Party espoused the views similar to those ones of Hitler, and German Nazis. The Skokie authorities prohibited the parade fearing the outbreak of violence. The party brought an action to the court claiming that its First Amendment rights have been violated. The Supreme Court agreed to such a claim and pointed out that ideas cannot be held illegal even if it is the ideas we hate (Smith 6). A more recent example is the release of disgraceful and controversial movie “The Innocence of Muslims” which caused anti-American demonstrations all over the Muslim world. Although this movie cost a lot to the US government, there is no any legal ground to prohibit it. In a word, one may observe that the protection provided by the First Amendment is strong indeed.
National Security and Freedom of Speech
In some situations an absolute freedom of speech can cause harm to security. For instance, if the CAA plans for anti-terrorist operations disclosed, some terrorist could escape, and in future strike back. There is no doubt that national security is an extremely important matter. It is a matter of normal existence and sustainable development of society. At the same time, the principles of democracy are also important. As well as national security, democracy contributes to the development of society. In general one may observe that societies that value democratic principles are more successful in terms of political, economic and social situation. Freedom of speech is an essential aspect of any democratic society. There are many functions which this freedom performs. One of such functions is preventing abuse of power or at least disclosing it. The Watergate scandal left a significant legacy. The scandal demonstrated an urgent need to maintain transparency of governmental actions. Denvir (21) argues that “[t]he Watergate scandal appeared to end the Imperial Presidency”, meaning that it stopped continuous abuse of power by the US Presidents. The Watergate was not merely about corruption, and power abuse, it was about the right to know which was challenged. In the aftermath of the Watergate, Congress passed laws requiring mandatory disclosure by the government of non-classified information – the Federal Privacy Act of 1974, and the Freedom of Information Act Amendments (Friedman and Levantrosser 59). In a word, the Watergate and its legacy are an example of how freedom of speech can heal corrupted society. Freedom of speech, therefore, is an important factor of societal prosperity. Overall one may observe that both national security and freedom of speech has at least one common function – provision of stability and development of society. However, despite of such commonality national security consideration and freedom of speech consideration often contradict each other.
A clash between national security issues and freedom of speech is well illustrated in New York Times Co. v. United States. In this case the US government attempted to prevent the New York Times and the Washington Post from “from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy”” (New York Times Co. v. United States). The aforementioned study revealed the role of the United States in Vietnam and Indochina wars. The US government contented that its claim is supported by the authority of the executive power to protect the United States from the publication of information disclosure of which would pose a threat to national security. However, the Supreme Court held that the New York Times and the Washington Post may publish the aforementioned classified study. The court found that the government failed to justify the restraints on publication of the study. Although in this case the Supreme Court stood for the freedom of speech rather than for national security considerations, the case itself shows that if the government well justifies the need for limitation of freedom of speech, certain restraints can be imposed.
Another case that demonstrates the relations between freedom of speech and national security considerations is United States v. Marchetti. In this case, Marchetti, the former Central Intelligence Agency (CIA) official decided to publish a book about the secrets of intelligence. While being the CIA employee Marchetti signed the secrecy agreement which bound him not to disclose certain information. The US government wanted Marchetti to disclose his manuscript to governmental officials before publishing. Marchetti attempted to challenge this request in the court. However, the court, pointing out that “[t] he Freedom of Speech and of the Press are not Absolute”, held that Marchetti should disclose the manuscript to governmental officials. In other words, the court recognized that in this case security consideration outweighed the freedom of speech contentions.
Both cases show, that freedom of speech is indeed not absolute. Furthermore, the cases show that freedom of speech can be limited by security considerations. In general well established and justified security consideration would outweigh the concerns about freedom of speech. At the first glance, certain limitations on freedom of speech for the sake of national security seem to be fair. However, the question is how far the government may go in introducing such limitations. The international community seems to support the idea that freedom of speech can be limited in cases when the release of information may pose a threat to national security. Thus, Amnesty International notes that international human rights law permit states to restrict freedom of expression on national security grounds. At the same time, Amnesty International makes a reservation that “states do not have a blank cheque to keep information secret or to punish individuals for publishing it, simply by declaring the information to be “classified” or declaring it necessary to restrict it as a matter of "national security"”. Amnesty International further contends that states must show proportionality between a specific threat and a restriction sought. In a word, Amnesty International fairly points out that the need for a balanced approach to freedom of speech and national security.
Both national security and freedom of speech are important for any society. It is impossible to state whether one or another is more essential. Therefore, there is a need to maintain balance between freedom of speech and national security. Freedom of speech should not be absolute but limited by national security consideration. However, the government should not misapply such limitations. Freedom of speech should be restricted only when there is a real threat, not a hypothetical one. Finally restrictions should be proportionate to the amount and the character of limitations.