The First Amendment during wars, generally

Sun Jan 8 22:45:16 PST 2006

Eugene writes:

"[T]he 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)." 

I don't disagree with that statement as a general matter, but I wonder if there's at least one category of individual rights whose "values" have enjoyed more expansive protection during the Bush Administration's prosecution of the war on terror:  the Second Amendment.  Eugene and others on the list are far more expert in this area than I am, and so I'm happy to be corrected here, but here's what I'm thinking of: 

During testimony before the Senate Judiciary Committee in late 2001, then-Attorney General Ashcroft said that the Justice Department was legally precluded from cross-checking the names of aliens being detained as suspected terrorists against the National Instant Check System ("NICS") database, which contains identifying information about people who have attempted to purchase firearms.  But as Michael Dorf pointed out in a Findlaw column from around that time, although the underlying statute (the Brady Act) required the destruction of NICS information for those who were allowed to buy the gun they sought, that requirement did not apply to those whose gun purchases were not approved.  

In other words, the governing statute did not forbid the government from cross-checking the names of suspected terrorists against a database containing information about people who had recently been turned down in their attempts to purchase guns.  That's pretty striking.  Imagine that someone being held as a suspected terrorist showed up in the NICS database as having tried and failed to buy some guns the week before.  Seems like that would be fairly probative of his dangerousness.  No statute prevented the Administration from performing such cross-checks, yet Ashcroft claimed he was legally barred doing them.

The only thing that *did* preclude the government from performing the cross-checks was a federal regulation.  Yet the Administration certainly could have repealed or amended the regulation.  In his testimony to the Judiciary Committee, Ashcroft did not signal a willingness to do that.  (I don't recall the Administration later changing its position on this point, but if it did I'm happy to be corrected.)   

There can be no serious claim, I think, that the regulation was compelled by the Second Amendment.  Certainly there was no caselaw so holding.  So isn't Ashcroft's willingness to forgo a potentially valuable source of information at least arguably a reflection of an inclination to overprotect Second Amendment interests even during wartime?  If so, then is this an exception to Eugene's general claim that it is unrealistic to expect individual rights to receive greater protection during wartime?     

Trevor W. Morrison
Assistant Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page: http://ssrn.com/author=372569 

---------- Original Message ----------------------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date:  Sun, 8 Jan 2006 21:31:48 -0800

>	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
>> 
>> 
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