“Congress shall make no law …abridging the freedom of speech or of the press…”
~ First Amendment to the U.S. Constitution
During the oral argument before the Supreme Court in the famous Pentagon Papers case, a fascinating colloquy took place between Justice William O. Douglas and the lawyer for the government. The case was about whether the government could prevent The New York Times and The Washington Post from publishing secret documents that demonstrated that American generals had been misleading President Lyndon Johnson and he had been lying to the American public during the Vietnam War.
The documents had been stolen by Daniel Ellsberg, a civilian employee of the Department of Defense, in an act of great personal courage and constitutional fidelity, and then delivered to both newspapers. Two federal judges had enjoined the newspapers from publishing the documents, and the Supreme Court was hearing appeals by the newspapers.
When Justice Douglas asked the government lawyer if the phrase “no law” in the First Amendment literally means no law, he was unable to answer. The court found his mumbo jumbo reasoning so telling that it actually published the transcript of the Q and A in the court’s opinion itself – something it had not done before in modern times nor since.
The court ruled in that landmark case that freedom of speech and the right to know what the government is doing and the right to consult whatever source one chooses when forming an opinion each trump the government’s concerns for protection of state secrets. Thus, it matters not how the media obtains information; if it is material to the public interest, the media may publish it, without fear of civil or criminal liability.
The Pentagon Papers case was the high watermark for the freedom of speech: Freedom trumps safety. But the court studiously avoided answering Justice Douglas’ question about no law. If the Constitution means what it says, then no law literally means no law, and thus all sorts of legislation about speech – from defamation to treason to silencing TikTok – is unconstitutional. But if no law doesn’t really mean no law, then what does it mean?
Regrettably, today, no law means whatever the court says it means. That’s what happened last week when the court upheld congressional legislation silencing TikTok.
Hellbound and Down 