Exceptions to the First Amendment

Last week, the Obama administration reversed an 18-year ban on news coverage of the return of war dead, allowing photographs of flag-covered caskets when families of the fallen troops agree.

The ban was put in place during the first Gulf War, because the administration felt that these images were too powerful. No Americans would agree to go to war, they argued, if they were forced to view those powerful images. Since national security requires that the public is willing to defend its nation, the press has not been able to publish these photographs for 18 years.

The First Amendment clearly states that Congress shall make no law abridging the freedom of speech or the media. The United States takes its First Amendment very seriously and, as a result, we have one the freest presses in the world. Yet, the Supreme Court has ruled that there are certain important exceptions to these freedoms.

Freedom of speech and the press does not permit libel. If a newspaper publishes lies about you that damages your reputation, you have the right to sue them in court and seek monetary compensation. The Courts have clearly ruled that obscenity is not permitted free speech. However, the language regarding the definition of obscenity is so broad that, in effect, there are few regulations on pornography.

The other exception to the freedom of the press involves national security. The press can be prevented from publishing information that could result in harm for our troops or endanger the nation as a whole. No newspaper would be permitted to publish the  coordinates of our troops in Afghanistan or provide information about our defense systems. However, the courts have had stated that the government must be careful to not overstep this right to withhold sensitive information. (See the Pentagon papers and The New York Times v. United States (1971).)

The images of dead coming home from war in flag draped pine boxes is  a powerful image. There's no doubt that that there is a dead person inside, and it resonates much more with the public than abstract casualty numbers. Some say that had the public seen the images of dead soldiers coming back from Europe, we would have never fought WWII.

Other say that the public has a right to see these images in order to better understand all the facts of the war. If the press is prevented from publishing these pictures, then they may be prevented from publishing other relevant facts. They also say that the photographs have no direct impact on national security, and therefore these restrictions endangered the First Amendment.

Drawing lines between permissible speech and dangerous speech is a constant challenge for the Supreme Court. Do you believe that the Obama administration made the right decision in this case?

Comments

[INTPagan]

Absolutely. Absolutely, absolutely, he did, because, if we are going to send people away to fight and die in a war, we need to be able to see the human cost of the action rather than being able to hide and not outright face the consequences of our (and our elected officials') decisions. As a United States marine, I was offended by the ban on showing coffins because, in my opinion, the Bush administration would rather people have supported the war without regard to human lives than actually face the consequences of this quixotic "war on terror". Good on Obama, even if it was quite a while back that this ban was lifted.

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