Going Gonzo on the First Amendment

Oh dear. Attorney General Alberto Gonzales has made the case that journalists can be prosecuted for publishing the existence of classified projects. In particular, he is referring to the phone call records collection program.

This begs the question: What is the limit of the press' power? Does the Executive Branch's right to protect the country trump the First Amendment? Slashdotter Mr. Z posted an excerpt to the Vietnam-era "New York Times Co. VS United States" Supreme Court case:

[The First Amendment] leaves, in my view, no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material which the Times and Post seek to use... [I]t is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.

So any power that the Government possesses must come from its "inherent power." The power to wage war is "the power to wage war successfully." But the war power stems from a declaration of war. The Constitution by Article I, Section 8, gives Congress, not the President, power "to declare War." Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.

These disclosures may have a serious impact. But that is no basis for sanctioning a previous restraint on the press...The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental sup-pression of embarrassing information. A debate of large proportions goes on in the Nation over our posture in Vietnam. Open debate and discussion of public issues are vital to our National Health. The stays in these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in [Near v. Minnesota].

So there we have it sports fans. When we were fighting Communism 30 to 40 years ago, the court ruled that the Government can't suppress information just because it's embarrassing. I'd say that the phone records issue is embarrassing.

Fast forward to today, when we're fighting the "global struggle against violent extremism", arguably the new Comunism. The press reveals not only the existence of the phone records program, but now the existence of NSA "secret rooms" with sophisticated data collecting hardware inside AT&T.

Where will this wind up? Wired has indicated that they believe that they have the legal right to publish this information. How long will it take for the Feds to put the smack down on Wired?

I guess this begs the question: Where are we headed? Perhaos the above cartoon from the Christian Science Monitor says it best.