The First Amendment during wars, generally

[Volokh, Eugene]

	I spoke imprecisely; I meant "internalized First Amendment
values" in the sense of accepting the importance of the principles
recognized by existing First Amendment *law*.  I realize "First
Amendment values" also means "the value of free speech and free access
of information even beyond the minimum mandated by First Amendment law";
I don't have any reason to think the Administration takes that broad an
approach.

	But it seems to me that this difference is an important one and
an understandable one, especially in wartime (or in times of perceived
danger more broadly).  First Amendment "values" in the second sense
represent values that the Court has *not* held to trump countervailing
values.  There are thus in each of these situations legitimate competing
values on both sides, for instance, the value of the government's
controlling its property and procedures in order to best further the war
effort.  (Note, incidentally, that some conservative Justices -- e.g.,
Thomas, and to some extent Scalia -- take a relatively broad view of
First Amendment rights when the government is acting as sovereign,
controlling political speech, but not when the government is acting as
proprietor.)  You or I might conclude that the Administration ought to
nonetheless protect the "First Amendment value" of maximal access to
information and processes that are within the government's control; but
surely perfectly decent and thoughtful people within the Administration
-- again, especially in wartime -- might conclude that the rival values
are more important.

	This is all another way of saying that the best we can
realistically hope as to First Amendment rights (or other rights) during
wartime is that they will not be cut back on by the government.
Expecting them to actually grow, or to have their "values" honored in
ways that substantially exceed what the law requires, is not realistic
(at least when we're talking about rights and values that compete with
the warmaking effort).

	So far, the Administration has been pretty respectful, I think,
of First Amendment rights as they have actually been recognized.
Returning to the prior restraint thread, I think this helps explain why
the Administration, to the apparent surprise of some, didn't seek a
prior restraint of the newspaper's publication of the NSA surveillance
information -- something that I think would be pretty clearly
unconstitutional under existing law, and that would affect what many
conservatives understand to be the core of free speech protection.  But,
no, it shouldn't be surprising that a wartime Administration, this one
or any other one, wouldn't be much stymied by First Amendment values
that have never been recognized as legally binding constraints.

	Eugene

> -----Original Message-----
> From: Frank Cross [mailto:crossf at mail.utexas.edu] 
> Sent: Sunday, January 08, 2006 11:27 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: Re: The First Amendment during this war
> 
> 
> 
> I can't say I have been tracking it quite closely, but it 
> doesn't seem like 
> the Administration has fully internalized free speech values. 
>  Haven't they 
> barred coverage of various events regarding the war, such as 
> pictures of 
> the returning caskets?  Perhaps not a violation of the Amendment but 
> something less than a full internalization of its values.
> 
> 
> At 01:17 PM 1/8/2006, Volokh, Eugene wrote:
> >         I should say, by the way, that the Bush Administration's 
> >failure to seek an injunction barring the New York Times from 
> >publishing its story fits comfortably with the relative paucity of 
> >governmental speech restrictions since Sept. 11, 2001.  I've 
> tried to 
> >track this quite closely, and the lack of such restrictions has been 
> >quite striking. There've been a few prosecutions (at the federal and 
> >state level put
> >together) that I think are improper; a very few attempts by public
> >universities to restrict faculty for their speech; some 
> possible First
> >Amendment right of access violations (the closing of immigration
> >hearings comes to mind, though I stress the "possible," 
> since it's far
> >from settled that there is such a right of access); but really very
> >little.  I hope that it's a sign that conservatives have internalized
> >free speech values, or at least that there's enough support for free
> >speech in many circles (at least elite circles) that government
> >officials suspect that speech restrictions are likely to be rejected.
> >
> >         Eugene _______________________________________________
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> **********************************************************
> 
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
> 
>