Out-Libertarianed by Tucker Carlson?

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I neglected to mention last night: Later in that same Bill Maher show, they had Tucker Carlson on and Maher was asking about the Plame hoohah. Carlson avered that a journalist's freedom to print the truth is absolute, covering even the exposure of a CIA undercover agent. Maher asks (roughly): "Oh, come on, so journalists can publish our troop movements? Even if it endangers the troops?" Yes, Carlson confirms: When he said absolute, he meant it.

Now, I thought I was pretty hardcore on free speech. But even I think it's OK to make that illegal. So, informal and utterly unscientific poll: How many people would be willing to join Carlson in biting that particular bullet?

NEXT: The Bigley Mystery

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  1. It’s up to the military commanders to keep that information secret. If a journo can legally ferret it out, that’s good enough for me.

  2. If journalists were allowed to publish such information, the military would not permit them in the theater of combat. imho, having journalists in the theater to keep an eye on what’s really happening is well worth the price of (minimal) restrictions on what they’re allowed to report.

  3. I think it would be unethical sleaze to publish troop movements and anyone who would do that deserves to be executed.

    OTOH, I am pretty literal about free speech. The phrase ‘Congress shall make no law’ seems rather explicit. In that view I part company with 90% of H&R fans with respect to free speech in government owned schools (ie, it’s a big stretch to invoke the establishment clause to stifle religious expression in public school) as well as parting company with Julian on the issue of Journalists publishing troop movements.

    Crimethink makes a valid point as well. The tradeoff for shutting up is access. But, in the old days journlistic access to the Commies in the USSR simply meant that we Americans were lied to by prominent and respected journalists reporting from the Kremlin. Their tradeoff for access was to slant the news. So, maybe access is meaningful and maybe it is meaningless.

  4. Strict 1st Amendment says a person can say anything. Other bits of the Constitution suggest that some things when said may be found treasonous and lead to captial punishment. Let the reporters say whatever they choose and be held responsible for the results.

    Such probably irks those who have a holy regard for free journalism and its value to a society. It also encourages the military to keep a tighter lid on its info, increasing the potential for undiscovered abuses of power. I suspect that over time, the urge to know and tell is stronger than the urge to stifle and dominate.

  5. An argument could be made that reporters have the right to report on anything, even troop locations. But there’s no doubt that soldiers have a right to use lethal force to defend themselves against enemy forces, so the military would clearly be within its rights to kill such “reporters”, or to take them as prisoners of war until the end of hostilities.

    All in all, it’s better for soliders and reporters alike to do things the way we do them now.

  6. It’s a tough call. Releasing information on troop movements before they happen would be a very bad thing.

    But on the flip side, once reporters started reporting troop movements, what’s to stop military leaders from giving the reporters FALSE troop movement information, using the media as a deliberate misinformation source. Then our talking heads on the front would wind up like Comical Ali, the Iraqi information minister.

    So really, this is one of the “unwritten rule” situations, the reporters shouldn’t report on troop movements if they want the military to offer any honest information at all.

  7. Yes, Farud Hashami, Baghdad Times. Where are your troops, and can I go there and count them?

  8. This is one of those cases where unwritten gentleman’s agreements seem to work best. I wouldn’t support criminal sanctions for a reporter who leaks troop movements (mostly because of slippery slope fears, not because I think the action is unworthy of punishment), but I would support cutting somebody out of the loop if he violated certain sorts of gentleman’s agreements.

    The thing about gentleman’s agreements is that they’re voluntary agreements that serve the best interests of both sides, and they aren’t abused because that’s something a gentleman wouldn’t do. If the gov’t abuses these gentleman’s agreements with the press (and some will undoubtedly argue that it has abused such agreements), well, I don’t know what to do.

  9. Loose lips sink ships.

    When you’re in the middle of a war, operational security is paramount. If the press had found out in WWII that the fake army Patton was parading around in southeastern England was indeed fake, it’s possible Operation Overlord would have failed. So no, I can’t support Mr. Carlson. It’s exactly the kind of information that needs to be kept way from the enemy, or risk losing a war.

  10. What’s wrong with revealing troop movements? As my dark overlords at Fox decree it, so shall it be.

  11. Troop movements could be kept secret during WW2 and even Vietnam, maybe even during Desert Storm.

    But can’t they be seen on satelite-fed internet now, somehow? Has the exception to free speech for troop movements during wartime become unjustifiable by technological obsolescence?

  12. Put me on the side of the absolutist. The only exceptions I make are for libel and fraud.

  13. Sick! Who would want to see our troops’ movements on TV? I can’t imagine the FCC standing idly by while the public is forced to watch defecation.

  14. If we grant Carlson’s view, we should also note that the obverse applies. Indeed, American journalists have often willingly and actively helped the military lie to the public via the press (and thus lie to the enemy) in times of war. The public generally understood and supported the reasoning.

    Freedom of the press is not a license to break the law, and there are laws regarding the release of classified information. There’s also laws against “giving aid and comfort to the enemy”–that one’s called treason, and can be punishable by death. One hopes that even today’s worst journalistic raging egos can comprehend this small but crucial point.

  15. Just the fact that a convivial and respectful discussion of this topic can occur is testament to the degree of philosphical ethics of those who post to this board regularly. I suspect we’ll have some megaphones trolling through and condemming anyone who doesn’t support their position on this issue, but the regulars here are able to elevate this issue to the level where nuances can be individually weighed, contrasting supportive arguments can be evaluated, and like Bill Cosby said every morning on Fat Albert, “…and you might even learn something.”

    Jood Fob Golks! Eep it Kup! Fye Nor Bow

  16. I Start Getting Dyslexic,

    Fuck off!

  17. One Bad Apple,

    Your anger is delicious ;~)

    Kease Peep Plosting!

  18. As discussed on earlier posts, Bill Maher is not a libertarian. So for Tucker Carlson to out libertarian him is not a big feat. Any republican should be able to.

    And Tucker Carlson is technically right. A reporter can report on anything as long as he is not breaking another law, such as; slander, treason, or whatever.

    Also the military can make agreements with journalists and say, “hey we will let you witness X events so long as you don’t report Y details”.

    On a side note one of the good Fast Co. Marines in Baghdad offered to break Geraldo’s nose again when Geraldo once again didn’t think he needed to follow the rules. And that stupid anti American Christian Amanpour got roughed up by one of the Seals when she thought she had the right to enter a restricted area. She kept yelling “get off me you stupid thug”, like that would get her to bypass the security. Both incidents were very amusing.

  19. On the Geraldo thing, Geraldo was being a dick and giving the Lance Corporal a hard time, who was just trying to do his job.

  20. Journalists have the right to publish whatever they want – as long as it doesn’t impinge on the rights of anyone else. 😉

    Publishing info on troop movements might make it easier to kill or capture said soldiers, so I think that journalists should not publish such information.

    If they are especially careless about it, I could even see punishment – especially if lives are lost as a result.

    I think that military commanders would refuse to allow journalists in theatre or provide them with protection, so being a journalist would become much more difficult (and deadly) than it is today, but the flipside is that we might get to see unsanitized war coverage.

  21. Kwais-
    No, I meant to suggest that Carlson had out-libertarianed me on this particular issue.

  22. crimethink has nailed it, as she/he often does.
    Whur wur he/she when we were wondering what the bad guys were going to do to disrupt US elections?

    Free speech I say, for troop movements.

    Hey! Do I smell smoke in this crowded blog site with the blocked exits? Could there be trampling?

    FIRE! FIRE!
    HIT AND RUN! HIT AND RUN!

  23. This is a useless question, just like the whole “Fire” in the theatre question. Not prosecuting journalists for reporting troop movements forces the military to arrange agreements with jounalists before hand, that’s all. Making certain speech illegal just gives more unnecessary power to the state, who, believe it or not, will just find a way to use it in a way that wasn’t counted on.

  24. I think the issue of consequences is vital here. Journalists have the right to publish anything, but they should be held responsible for what happens, good or bad. If a reporter unveils movements and soldiers die, the blood is on his hands. Conversly, if a reporter covers a feint, and that allows the military to win with fewer losses, then he’s part of the victory.

    Moreover, if you outlaw the reporting of troop movements, you take away an important tool for military commanders. Sixty years ago, large quantities of fake radio traffic in Southern England allowed Eisenhower to convince the Germans he had a large force there waiting to attack Calais. Now, a commander could do the same thing through CNN. However, if reports of troop movements were illegal, any such reports would be obvious plants, removing this tool from commanders’ hands.

    I guess I’m with Carlson on this one, though for different reasons.

  25. I think the issue of consequences is vital here. Journalists have the right to publish anything, but they should be held responsible for what happens, good or bad. If a reporter unveils movements and soldiers die, the blood is on his hands. Conversly, if a reporter covers a feint, and that allows the military to win with fewer losses, then he’s part of the victory.

    Moreover, if you outlaw the reporting of troop movements, you take away an important tool for military commanders. Sixty years ago, large quantities of fake radio traffic in Southern England allowed Eisenhower to convince the Germans he had a large force there waiting to attack Calais. Now, a commander could do the same thing through CNN. However, if reports of troop movements were illegal, any such reports would be obvious plants, removing this tool from commanders’ hands.

    I guess I’m with Carlson on this one, though for different reasons.

  26. I think the issue of consequences is vital here. Journalists have the right to publish anything, but they should be held responsible for what happens, good or bad. If a reporter unveils movements and soldiers die, the blood is on his hands. Conversly, if a reporter covers a feint, and that allows the military to win with fewer losses, then he’s part of the victory.

    Moreover, if you outlaw the reporting of troop movements, you take away an important tool for military commanders. Sixty years ago, large quantities of fake radio traffic in Southern England allowed Eisenhower to convince the Germans he had a large force there waiting to attack Calais. Now, a commander could do the same thing through CNN. However, if reports of troop movements were illegal, any such reports would be obvious plants, removing this tool from commanders’ hands.

    I guess I’m with Carlson on this one, though for different reasons.

  27. I think Pedro hit the nail on the head. Let the military and journalists reach gentleman’s agreements. Codifying this won’t be any more effective than careful agreements, and may even give the gov’t a new cudgel to use against journalists that it doesn’t like.

  28. I’m with Julian. No evasions about “they have the right to print it and others have the right to punish them.” If anything satisfies the “necessary relationship to a compelling state interest” test for restricting speech based on its content, this does. It seems to me that even libel and slander restrictions are harder to justify than this one.

  29. Apparently this Tucker Carlson has never heard of a surgical strike.

  30. Perhaps we could split hairs and suggest the reporter has a right to publish the troop movements, but the government may delay publication in certain cases. Obviously, this can be criticized as a slippery slope, but so too can the alternatives (gentleman’s agreements get too cozy, protection-for-discretion becomes blackmail, censorship soon extends too broadly).

    Another interesting question: what about the reporter who reveals “enemy” troop movements? There seems to be a kind of us/them thinking permeating this discussion. Is it ethical and legal for an Iraqi journalist to report the same information American journalists were criticized or prohibited from reporting? Would it have been unethical or illegal for American journalists to report Iraqi positions if doing so cost the soldiers’ lives?

  31. In 1942 a reporter for the Chicago Tribune uncovered the news that the US had broken Japanese codes before Midway. He duly filed the story, which was trumpeted on the front page. The reporter in question had been at the Battle of Coral Sea and had distinguished himself helping to rescue survivors of the Lexington.

    Of course, the US HAD broken Japanese codes and the Navy was furious and demanded that the man be arrested and tried as a spy, etc. Even during that crisis there was debate within the government over whether you could arrest a reporter who was just doing his job a little too well. Too, at that time there were no “secret tribunals.” Amazing that we managed to survive World War Two without secret trials. So they would have had to hold the trial publicly and tell everyone that they had broken all the Japanese codes and this guy had ruined the effect by telling everyone.

    Or they could just keep their mouths shut and hope the thing blew over, which it did, proving that the Japanese did not read the Chicago Tribune, which was notorious as an anti-FDR rag. It’s pretty rare that reporters can actually uncover anything that an enemy intelligence service cannot, and even more rare that the publisher cannot be persuaded not to print it, and unheard-of that clever staff officers cannot spin the story to their advantage. During Gulf War One the Army broadly advertised the units that had been transferred to Saudi Arabia, giving the impression of a massive, immediate buildup when, in fact, only the advance elements of each division had actually been deployed. Thus did they intimidate the Iraqis and buy time for the bulk of the forces to be shipped over. Clever, simple, and cost-free.

    The current laws against revealing the names of covert operatives dates to the early 80’s, when a group of enterprising leftists sifted through public information sources to discover the names of CIA agents for the benefit of those who had been targeted by the US government. Several agents were named, Congress was predictably outraged, and the law was passed. Does Tucker Carlson defend this activity? Not likely…he’s just making excuses for the Bush Administration.

  32. AC: That’s an interesting point. Presumably, a reporter who tries a little too hard to find out military information about a foreign country risks crossing the line into espionage. Even reporters from a “neutral” country can be charged with espionage. There was a case some years ago about a reporter who was “embedded” with a guerrilla group in the Philippines. He set up his cameras and duly recorded an ambush of Filipino troops, for which he was severely criticized. The argument was that he should have tried to warn the government troops that they were about to be attacked.

    It’s hard to see, of course, because they really are so unprofessional, but news organizations are really intelligence operations whose client is the citizen. Their objective is to find out what is really going on, to uncover information that is of use to the general public, and deliver both the raw data and intelligent analysis. Most news organizations are bad at this because their clients aren’t very sophisticated users of intelligence.

    The best reporting is in business and sports, because the audience of the business section and the sports section is knowledgeable about the subject and it takes it very seriously. Bad business reporting costs you readers/viewers very quickly. Political reporting and foreign correspondence is uniformly bad because it’s covered as entertainment for people who are emotional about the subject but not terribly well-informed.

    I’m reminded of the moment during the Atlanta Olympics when Tom Brokaw referred to Richard Jewell as the “Olympic Bomber” and Bob Costas, sitting next to him, interjected “ALLEGED bomber, Tom.” Costas was from the sports department, where sloppy reporting gets you fired.

  33. Journalists? Fuckim. Freedom of the press is just a subset of freedom of speech that, as the Peter Zanger’s trial was to establish, you could print anything you could say.
    Reporters have exactly the same obligations and responsibilities as any other citizen. If they conceal a source, they should suffer the same penalty as anyone else. If they reveal information that should be secret they should suffer thas same penalty. Early in WWII, some reported published a column about how the dumb Japs didn’t know how deep our subs could go and so they were setting their depth charges 100 feet too shallow. A few weeks later, they were setting charges lower and killing more of our subs. That reporter and the dumb shit who told him about it should have done 20 years minimum in Leavenworth.

  34. “Does Tucker Carlson defend this activity? Not likely…he’s just making excuses for the Bush Administration.”

    Excellent point. This is less principle than spin.

    As for free speech in any context, there is no such thing without consequence, accountabilty or responsibility. If you divulge troop movements and troops are harmed as a direct consequence, I’ll defend your right to divulge this information if you take responsibility for the consequences of doing so.

    Journalists need to and generally do operate within the bounds of simple ethics and common sense on this – most because they don’t want blood on their hands, and the less scrupulous because if they don’t, they’re guaranteeing that they’ll never get good information again.

    The operational imperative excuse has always struck me as disingenous. Loose lips sink ships, sure, but if a journalist has information, it’s generally because of the loose lips of others. Asking journalists to self-censure when others don’t is very dangerous.

    I do believe the military has a right not to speak about future operational plans and demand that those part of the plan keep certain items confidential. If you don’t like this, you can speak up but you’re violating orders.

    You should do publicly if you believe you’re right in the face of impending wrong – history is likely to vindicate whistleblowers and punish the complicit, after all – but there’s certainly responsibility attached to doing so. Which is why we have unnamed sources, which are also acceptable.

    And, of course, the media has a right in response to pry for whatever information they can get and have a duty to report when the military is being unduly secretive or propagandistic. This duty is, unfortunately, not being exercised very well at present, and the whole notion of pre-selected embedded journalists is designed to distract journalists from actually performing that duty, of course.

  35. James-

    Very funny at the end – unfortunately, as a sports guy today, Costas must be a pro at prefacing identifications with “allegedly.” So sad.

  36. Generally speaking, the historical record states that the government has been more than willing to censor reporters when need arised in war time. In other words, when push comes to shove, the government will censor the press.

  37. A following question might have been, “Who does that truth serve?”

  38. A previous poster made a brief reference to Phillip Ageee, a former CIA agent who “outed” various agents during his tenure with the Covert Action Information Bulletin. Many of his former colleagues were subsequently killed as a result of his actions.

    Here’s my question: Is there THAT big a difference between Agee, an unprincipled communist sympathizer who betrayed his fellow CIA colleagues to line his pockets and curry favor with the wine-and-cheese set and Novak, an unprincipled party hack, who betrayed a “deep cover” agent to curry favor with White House officials?

    As a journalist, I see little difference between the two.

  39. Cletus-

    Well, nobody died (to the best of our knowledge, anyway) as a result of Novak’s actions. There’s one obvious difference.

    But you still raise a good question. No doubt some other posters will be only too happy to explain to you that

    (1) Plame has never, ever, been anywhere more dangerous than the coffee lounge at Langley, and has never talked to anybody about anything that could get a person in trouble, so this is all moot
    (2) everybody on earth already knew Plame was CIA (except the New York Post, which thought she was Dick Gephardt 😉
    (3) none of this matters because Wilson was wrong (which raises the obvious question of why Novak felt the need to bring up the matter of Wilson’s wife; if Wilson was wrong it should be possible to debunk him without outing Plame).

  40. Walter: that wasn’t a reporter. It was a sitting US senator, and he held a press conference to announce it. I cannot for the life of me remember which senator it was.

    James

  41. Prof. Levy,

    Problem is, “compelling state interest” isn’t in the Constitution.

    – Josh

  42. Wow…

    I wouldn’t call that Libertarian. Stupid, yes; libertarian no. Hooray for free speech an’ all, but publishing troop movements??? What possible value could the general public derive from it that’d be worth making it that much easier for those soldiers to be killed??

  43. Actuallly, military tribunals were used during WWII to try some German saboteurs landed on our shores by submarine.

    http://www.free-market.net/spotlight/tribunals/

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1

    Kevin

  44. Carlson just ties that poncy little bow tie too tight sometimes…

    The 1A has never been “absolute”, and it has never been rationally argued that it should be. I, too am a hard-liner when it comes to defending free speech, but the “falsely shouting FIRE in a crowded theatre” example should be simple enough for even a retard like Tucker to understand.

    This, by the way, is the same kind of fundamentalism that leads people to be “absolute” on the 2A. Once you agree that your neighbor shouldn’t be allowed to own a howitzer, you’ve conceeded that a line can be drawn and now it’s just a matter of deciding as a democratic society where to draw the frickin’ line.

    Likewise on 1A regulation. Troop movements and covert operative identities clearly cross the line.

    And whether Plame was ever in danger as an operative is irrelevant. Her contacts around the world, as well as other operatives associated with her most certainly are in potential danger as a result of Novak’s actions. I say send the prick to jail.

  45. I’m hoping the bullet Calson bites is an incendiary (tracer). I think that would fix his mouth.

    Any one who consistienly acts like they are on the other side (tactically) ought to be treated accordingly. Hanged. Pour l’ecourager les autres.

  46. Problem is, “compelling state interest” isn’t in the Constitution.

    Neither is the right to have sex with the consenting partner of your choice.

  47. In the case of yellign “FIRE” in a theatre, it could be a condition of entry that you wouldn’t yell such warning without cause. Break the contract with the private party who owns the theatre and you will be asked to leave and suffer whatever contractual penalties specified that you agreed to before entering said property.

    I think a similar approach works well in this scenario. Journalists should in no way be censored by the government as they first and foremost belong to the “individual” group who right of speech the government cannot restrict. However, the release of military information (not governed by the Freedom of Information Act), can be governmened by contractual agreement, as it should be. The military reveals certain information that it wishes to while the jounalist is told which is restricted information and which is not. Publishing restricted information is a violation of the contract that carries with it whatever penalties agreed to within the contract. The journalist is free to publish other information that the military deems fit to publish. However, there should be a date of expiration for all military information after which it should be possible for individuals to access it via the freedom of information acts, and that I think is a vital facet in keeping the government honest.

    I have little faith in government to do the right thing during times of peace, and I have even less faith in it during times of war.


  48. Problem is, “compelling state interest” isn’t in the Constitution.


    Neither is the right to have sex with the consenting partner of your choice.

    The Constitution is an attempt at restricting the powers of government and granting freedoms to individuals that the government may not abuse. “compelling state interest” is not directed at a particular individual, while consensual sex (which can be viewed as a right of contract), is applies to individuals. Hence, since the first isn’t laid out within the constitution, government may not practice it, and by the same token, since the latter is not specified in the constitution, the individual may practice it.

  49. M. Simon, the purpose of the Constitution is to specify exactly what the federal government is allowed to do, and the 10th amendment says that anything not specifically granted to the Fed is not within its call. Thus, it is significant that the Constitution doesn’t mention “compelling state interest”, whereas it is not significant that it fails to mention “the right to have sex with the consenting parter of your choice”.

    As for the original question, I’m on the hardcore absolute-ist side of the fence, but let me sidestep the whole messy debate and point out: we shouldn’t be moving troops over there in the first place. Now, if we were invaded, and someone was reporting our own troop movements while they’re defending our own soil… I’m leaning towards that being treason.

  50. National Lampoon nailed homeland security in the 70s, “Don’t discuss bus schedules.” Words to live by.

  51. The issue missing from this discussion is that of PRIOR RESTRAINT….

    There is a difference between telling me what I can’t write before I write it, and telling me that what I wrote went too far.

  52. Problem is, “compelling state interest” isn’t in the Constitution.

    Neither is the right to have sex with the consenting partner of your choice.

    Some point to the 10th amendment and say that the several states have plenary power to regulate anything not explicitly forbidden to them by the Federal Constitution or by a state’s own charter. “Police power,” another term that isn’t in the the Federal Constitution, is used to describe the powers reserved to the states under the 10th, or to the people.

    Of course, the 9th Amendment reserves unenumerated rights to the people.

    So, putting aside such legislation meant to affect those living in a federal territory, whether there is a right to have sex with whoever or however you would like is open to interpretation, depending on whether you think our constitutions should defer to the state legislatures, the people speaking through the initiative and referendum process, or to “the people” in the sense of individuals exercising an unenumerated right. As a libertarian, my impulse is to back the last of these choices, but where the Sandy O’Connors of the world will come down is always a crapshoot. S O’C, a former state judge, often shows undue deference to the “police power,” in my estimation, and she often swings the Court.

    Kevin
    (IANAL)

  53. Carlson avered that a journalist’s freedom to print the truth is absolute…

    Strict 1st Amendment says a person can say anything.

    I disagree with both these statements (and they are not at all the same), because…

    Journalists have the right to publish whatever they want – as long as it doesn’t impinge on the rights of anyone else.

    Moreover, the statement on the 1st Amendment is wrong in two different ways. First, the Amendment doesn’t say anything about what people have the right to say. It says what the government may not do.

    Second, there are two limits on fundamental rights (and I consider “free speech” a fundamental right): one’s nature, and the fundamental rights of others.

  54. I ask you, how would you prosecute espionage cases under an absolute 1st amendment regime? The enemy would just publish their spy efforts and be legally protected.

  55. Ruthless, LOL, except that shouting ‘FIRE’ in a crowded theater is NOT a free speech issue it is a property rights issue.

    Yes, I know the ACLU would disagree…..but, as in most things, they are wrong.

  56. TM,

    If we stayed home and minded our own business and promised to nuke anybody who screwed with us, we wouldn’t need any spies and espionage would be something that other countries engaged in.

  57. The First Amendment says, “Congress shall make no law…” and by extension, that the President shall enforce no congressional law, or that the court will uphold no congressional law or its enforcement by the President, “…abridging the freedom of speech, or of the press…” I would infer, though it isn’t expressly stated in the Constitution, that neither the Courts nor the President could interpret and/or enforce laws so as to “create” law that abridges the freedom of speech, or of the press. Under the 14th Amendment, one might extend first Amendment restrictions to all US governments: local, state, and federal.

    All that being said and granted, however, what’s to say that I, or even the government, could not bring civil suit against a citizen (in the case of speech) or reporter/publisher (in the case of the press), to redress harm done to the plaintiff by their exercise of freedom? Right is right and wrong is wrong. If the judge and/or jury found that even truthful speech did wrong by the plaintiff (through malice or negligence, for example), shouldn’t the the defendant have to make restitution, and shouldn’t this non-criminal process be outside the restrictions of the Constitution? Couldn’t this same process deal equally well with the “loose lips” situation as well as the “crowded theatre” situation?

    It would seem to me that 1) wanting to get access to info; 2) wanting to retain a good reputation; and 3) wanting to avoid potentially devastating civil suits would motivate not only members of the press, but individuals in general, to exercise their first amendment freedoms carefully and responsibly, without requiring prior restraint or any form of censorship imposed by any government agency.

  58. “Freedom of speech, or of the press” doesn’t ever include the right to violate another’s rights. The “restraints” are IN the word “freedom” itself.

    A law forbidding conspiracy to murder, for example, does not abridge freedom of speech. If I tell a hitman, “If you murder X, I will pay you $50,” I can be Constitutionally charged with a crime.

    Truth-in-advertising laws are not considered an abridgement of freedom of speech because they protect from fraud. And fear of civil remedy might not be adequate protection for the fraudee. “My aspirin cures cancer. Buy it today” requires a… preemptive strike.

    Poor Martha Stewart, too, was only exercising her right to freedom of speech. But, she was found guilty of telling a lie. So apparently, only the expression of opinions or of what is perceived as true by the speaker is protected by the 1st amendment. (I think the case was a travesty, btw.)

    By extension, I think a valid case could be made under the Constitution for much stricter campaign finance laws. “I’m speaking with my money” isn’t enough for a contribution to be protected under the 1st.

    (I’m musing. Sorry.) Now that I think about it, the 2nd amendment right contains the same seeds of self-regulation. (I know what I mean.)

    “I am a good and effective president.” Maybe Bush could be tried under truth-in-advertising statutes.

  59. Julian Sanchez,
    I wouldn’t worry too much about being out libertarianed by Tucker Carlson. He was defending a fellow conservative in an over the top way from during a stupid line of questioning that would not have allowed him to discuss the real issue in a coherent manner.

    The thing to do would be to see how well you fare if Tucker Carlson was defending a liberal democrat. Or to see how well you fare against Tucker Carlson on other issues.

    Tucker did do well on Bill Maher’s adhominiem attack of Rush Limbaugh over his drug use. “I don’t think that we should be prosecute anyone for personal drug use”, or something like that. Bill Maher had to agree. The next step would be to talk about if the user isn’t criminally responsible for his actions, why is the pusher responsible for the actions of the user?

  60. Cletus Nelson,
    The way I see the outing of that particular CIA person, is that she was acting in a partisan way under the office of the CIA. And she used her influence to appoint her partisan husband, to go and not find something that would help the presidents case.

    The CIA should be non partisan, they work for the office of the presidency. Or something like that. In any case any agent acting in a partisan way should be outed and fired. And maybe prosecuted.

    Especially when for national security reasons we would want to help them retain anonimity. Thankfully this one was a desk jockey and outing her harmed no one.

    Also my total understanding of this case may be somewhat shaky, so correct me by all means.

    So if a her was a him, or if some of the other details are wrong. But my main point is that the crime here is not the conservative journalist outing a CIA desk jockey, but that a CIA person was using the office in a partisan way.

  61. Brian Linse mentions;

    “Once you agree that your neighbor shouldn’t be allowed to own a howitzer”

    I run into that a lot from people who argue for various ridiculous gun laws that help no one. And concieding that is a slippery slope to lots of gun bans. Becuase they then use the whole “why do you really need that gun” argument.

    The one that I have come up with is: “You can’t outlaw anything that the police are allowed to use”.

    The way I see it if the police really need it to fight criminals, individual citizens might also need it for before the police arrive. And it seems to me that it goes well with the whole “no standing army” thing.

    I know this is a little off the 1st ammendment topic. But I would really like to see what the comments are from the people who read this, and blog.

  62. kwais-

    Correct me if I’m wrong, but I thought it went something like this.

    Gov’t gets a report that Iraq may have been trying to buy uranium from Niger. Plame may or may not have suggested that her husband be sent. One way or another, the administration sends him, at least partly because he’d been an ambassador to west Africa. He goes, he finds that the report in question may or may not have been accurate. President says something in state of union address that Wilson thinks is false (yes, I know, Wilson was of course wrong and the Dear Leader was 100% right, yadda yadda yadda). Wilson says “Hey, I investigated that claim and found out it was false!” Novak doesn’t like this, so he suggests that Wilson only got the job in the first place because of nepotism via his CIA wife.

    Where in there did Plame use her office for partisan reasons? Was the plan for her husband to go there and find nothing (or at least report that he found nothing) so that later Wilson could make partisan allegations?

    Sounds like the sort of elaborate plot you’d see on Alias, not the real CIA.

  63. Problem is, “compelling state interest” isn’t in the Constitution.

    Neither is the right to have sex with the consenting partner of your choice.

    In order to fulfill the 14th Amendment requirement that states extend the equal protection of laws to all citizens, the several states cannot rightfully protect one subset of a class of consensual activity and prohibit another.

    (Not that this stops the Supreme Court from allowing it. One justice noted that the Supreme Court isn’t last because they’re right; they’re right because they’re last.)

    – Josh

  64. two things:
    The Plame affair shows that journalists are explicity ALLOWED to publish undercover names. The probe is all about WHO TOLD Novak ( and others who didnt blab). But the same journalists have to fess up on who their ‘source’ was. This of course is not covered by the constitution.

    The other point, just before the Iraq invasion, wasnt the media full of ‘troop movements’ like which division is coming via Turkey, and the units that will work with the British around Basra
    The ‘shell has left the howitzer’ on that one. I can see public support for not disclosing accurate and classified information. But everybody will just speculate anyway based on good guesses ( along with mis-information put out by the pentagon.)
    Going one step back to the Cold war and one of the secret armament programs of the military, the original stealth fighter. Major media were offered the details , which they couldnt publish(how they did this is a mystery) or a cover story which they could. My bet is that Sy Hersh wasnt amoung those offered this deal

  65. Thoreau,
    Right the whether or not she suggested her husband be sent is what I am talking about.

    Not whether he was right or whether the president was.

    Something about him being a partisan hack is important too. I know the presidents people sent him, and maybe they should have researched him better. But one hopes that the administration should be able to take the word of the CIA on who the right person to send would be (not a partisan hack clearly more interested in not finding what he was supposed to look for).

    I saw a some on a cable news channel that showed Wilson and his wife on some anti Bush thing before he was sent. I could be wrong, or it could be Fox propaganda (I am not sure it was fox that I saw the tape on, but it might have been).

    In any case, there is the nepotism thing. There is the anti Bush thing. I mean if he would have been shouting “hey this is what I didn’t find, you all need to know that” It would be one thing, but he was instead shouting “we are going to destroy Bush”.

  66. kawais:

    There’s no evidence that Plame actually intervened in a dishonorable way. Dropping your husband’s name to a superior when he is, in fact, qualified for the job is hardly nepotism. She herself was not in a position to hire him or approve him or retaliate against anyone who failed to or even compensate them by hiring someone else. Wilson was a former diplomat from the region who had the right clearances and was apparently apolitical, since he had made donations to both parties.

    You are also unfamiliar with how NOC agents work. So, apparently, were the people that “outed” her, despite the fact that they were appointed to responsible positions in the government.

    A NOC agent creates an artificial life that enables them to get close to potential targets and recruits. In Plame’s case, she created a company that ostensibly counselled buyers of industrial equipment, giving her contacts a plausible reason for being seen with her and her an excuse for knocking on the doors of people that might know something about nuclear programs.

    How far did she get? No one knows, though the poorly informed assert she never accomplished much. Of course, my fire extinguisher hasn’t accomplished much, but I keep it just the same, because I never know when I might need it. Did the traitor, I mean, “alleged traitor” bother to decide whether or not she was useful before spilling her name to the press? Did he really know anything about her at all, or was he just drunk with the elation of knowing something that no one else knew and couldn’t help but tell someone?

    Everyone who ever had lunch with Valerie Plame is now a suspect to his own government. Did they deserve to be outed, too?

  67. James,
    What about the earlier allegation that the only people that didn’t know she was CIA were the two newspapers mentioned?

    Fair enough on the nepotism charge.

    And I am operating under the assumption that whomever dropped Valerie Plame’s ID to Novak did so because they were indignant of the partisan hack activity that the two were involved in.

    If whoever dropped the names, did so for personal gain, then I am all for prosecuting them to the full extent of the law. But I don’t think that Novak broke any laws, so I don’t think that he can be prosecuted.

  68. TWC said:
    “If we stayed home and minded our own business and promised to nuke anybody who screwed with us, we wouldn’t need any spies and espionage would be something that other countries engaged in.”

    Why is “isolationist” more damning than “racist”?
    In TWC’s defence–not that he needs one–I’m guessing he didn’t mean we all should stay home… just the US standing army. That should come home and be seated.

    With regard to secrets, doesn’t the obsession with them make governments seem like pre-teens? Wars and secrets! What are they good for?

    Finally, I know Sudan is not messing with us, but shouldn’t we nuke Khartoum anyway for sponsoring genocide?
    I mean it’s not as if Uncle Sam doesn’t have a few loose nukes to spare. He could put that aspirin factory over there out of business for good this time… no head means no headache.

  69. kwais,

    Even if Plame was using her office in a partisan manner (which I happen to think is the case), it seems pretty unlikely to me that this is actually criminal, as you suggest, and it is up to her supervisor within the CIA to discipline her. On the other and, if Plame was in fact an agent of the CIA whose identity as such was supposed to be classified (and I’ve heard it suggested that she wasn’t anyways), then it seems very unlikely to me that Novak could have arrived upon this information through legal means, and that whoever provided him this information should be prosecuted. Novak should also be prosecuted for passing along this illegally obtained information. Does anyone know where the case against Jim McDermott for passing on illegally obtained cellular telephone conversations of republican operatives (Newt Gingrich?) to the press stands?

  70. Quoth Jacob T. Levy:

    —–
    I’m with Julian. No evasions about “they have the right to print it and others have the right to punish them.” If anything satisfies the “necessary relationship to a compelling state interest” test for restricting speech based on its content, this does.
    —–

    Aw, horseapples. “Compelling state interest” does not appear as an exception in the First Amendment. The whole point of the Bill of Rights is that it trumps any state interest, period. It reins in the state, not vice versa.

    That said, if someone is nosing around into classified information, then he or she should be subject to prosecution for espionage … whether he’s a journalist or not. And while publication of secret troop movements would not itself be a crime, it would be evidence of a crime.

  71. In the attempt to implement the rules of the Constitution as rules of law, it’s inevitable that something like a compelling state interest test will come into play. “No law” is never going to mean “no law;” conspiracy to commit murder will not be protected under freedom of speech and contract.

    It’s better to have a court explicitly laying out something like a compelling state interest test than to force the court to deny that what are plainly speech acts are actually speech. The latter is standardless; it empowers the court to *define* various speech acts out of the protection fo the 1st amendment rather than having to *argue* for their exclusion in a refutable way.

    If you prefer the former, because it seems to be truer to the text of the Constitution, then prepare yourselves for courts *inevitably* holding that publishing troop movements is not speech or press. I’d rather not have them contorting the language in that way, nor pretending that something isn’t speech just because it’s also treason, etc.

    Words aren’t self-interpreting or self-enforcing; interpretive tests are inevitable. I think “necessary relationship to a compelling state interest” is a pretty defensible interpretive test.

  72. I have to say that the comparison of reporting style in the Iraq conflict with the fake army build-up in WWII is trite.

    A better question might be: If Germany’s reporters in the late 30s had accurately reported what the German military was doing would the world have reacted in the way they did and would we have AVOIDED the six years of global conflict? If Germany’s reporters had later accurately reported what was happening to the Jewish population in the Nazi concentration camps would the “normal” population of Germany have allowed their government to do this “in their name”?

    I fear the day when we can no longer rely on our journalists to ferret out the truth about what our administration is doing in our name.

  73. The key is this:

    The Constitution provides a way to declare war, and establish that we’re “at war” in a way that actually means something.

    We haven’t done that since WWII.

    To me, any restrictions of this kind which are imposed when we are not legally at war (and we are now not legally at war) are unconstitutional. Even if at war, the standard ought to be high.

  74. The all or nothing arguments supporting treasonous reporting is a form of mental illness. Splitting legalistic hairs is a form of mental masturbation leading to chronic suicide.

    All of you mental cases should post your desire to allow disclosing troop movements on sandwich boards and pridefully parade around Fayetteville, North Carolina. (just a suggestion, you So Cal folks could do it in Oceanside).

  75. What would be ideal is if we just got together and added important subclauses of clarification to the 1st amendment, going through the amendment process each time.

    If we can get enough agreement to pass the amendment, we have probably met Jacob Levy’s test, and the local structuralists that insist that the constitution means something get it in writing. Everyone is happy.

    The problem for the structuralists, of course, is that the document probably never meant anything, and it sure as hell doesn’t in these post court stacking, New Deal, ‘Great’ Society days. All we really have left is the commerce clause and that vague bit about promoting the general welfare. This is the inevitable fate of every constitution, though. People ignore it when they want to.

  76. Quoth Horst Graben:

    —–
    All of you mental cases should post your desire to allow disclosing troop movements on sandwich boards and pridefully parade around Fayetteville, North Carolina. (just a suggestion, you So Cal folks could do it in Oceanside).
    —–

    Never been to Fayetteville, but I’ve spent plenty of time in Jacksonville (while stationed at Camp LeJeune) and Oceanside (while stationed at Camp Pendleton).

    Nobody would bat an eye in either place. American troops know what they’re supposed to be fighting to protect.

    Tom Knapp

  77. Sure they should be able to. If the journalist learns the information and
    spreads it, then the government is out of luck. Conversely, the government has
    a right to try and keep it secret, but I don’t think they have a right to
    control it when it leaves their premises or personnel. Punish their people, but
    do nothing to the journalist. Of course, if the journalists are in a hostile
    territory, they don’t have a right to military protection either; it works both
    ways.

    Kenneth Gardner

  78. Sure they should be able to. If the journalist learns the information and
    spreads it, then the government is out of luck. Conversely, the government has
    a right to try and keep it secret, but I don’t think they have a right to
    control it when it leaves their premises or personnel. Punish their people, but
    do nothing to the journalist. Of course, if the journalists are in a hostile
    territory, they don’t have a right to military protection either; it works both
    ways.

    Kenneth Gardner

  79. Disclosure of Troop Movements has been done since we found out..
    The Grand old Duke of York marched 10,000 men up the hill…..and marched them down again.

    In a world that makes Britney Spears wedding news, troop movements aint going to be much of a secret.
    The intentions may just stay secret a litlle longer

  80. You guys really amuse me. I though Reason was for libertarians, not statists. No-one of you all assumes there shouldn’t be a military involved in foreign countries. How wonderfully libertarian of you all.

    Thank goodness for Lewrockwell.com and The Last Ditch websites.

  81. I think I would be willing to bite that bullet. I don’t want soldiers to be hurt, but, cold as it may say, I love the Bill of Rights even more. It’s solely the government’s job to protect secrets. I’m not sure I could think of any circumstance in which the commander- in- chief of our troops should be able to declare himself the COC of our journalists also. For once, I have to agree with Carlson– however reluctantly.

  82. Thomas: Don’t know about your inside knowledge, I thought troops fought for each other, not some lofty theoretical ideal… at least that’s what they teach at mcrd… maybe quantico is different. I smell officer, but I could be wrong. Thanks for your service and response.

    Kenneth: Your solution is a bit Rube Goldberg, IMO.

    Ztev: Don’t believe everything you read… Celebs love the exposure, our boys and girls don’t need the help from Al Jiz ruiters and AP.

    Matt: your attitude hard-line would be most welcome at the Swaggart household.

    Jessica: The bill of rights is meaningless if we can’t back it up. Clearly your attitude would burn the village to save it. That only works in the movies when Dale Dye says it.

  83. I think I would be willing to bite that bullet. I don’t want soldiers to be hurt, but, cold as it may say, I love the Bill of Rights even more

    This is not a Bill of Rights issue. The notion that the Bill of Rights covers wartime espionage, or was meant to cover wartime espionage, is completely without foundation.

  84. That would be treason, while I wholeheartedly believe in freedom of speech, the disclosure of troop movements would even be worse than ficticiously yelling “Fire” in a crowded theater.

  85. Quoth Horst Graben:

    —–
    Thomas: Don’t know about your inside knowledge, I thought troops fought for each other, not some lofty theoretical ideal… at least that’s what they teach at mcrd… maybe quantico is different. I smell officer, but I could be wrong.
    —–

    Survey says:

    Grunt enlisted, 0341 (81 mm mortars). MCRD San Diego, Infantry Training School at San Onofre (MCB Camp Pendleton). My only time at Quantico was for the marksmanship instructors’ course.

    Yeah, troops fight for each other. But contra what many people think, I never found my fellow Marines to be unthoughtful about what America means. They might roll someone for publishing troop movements, but certainly not for saying that publishing troop movements was a constitutionally protected activity.

    —–
    Thanks for your service and response.
    —–

    From the sound of it, Semper Fi and ditto.

    Tom Knapp

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