DEMOCRATIC COMPETENCE, CONSTITUTIONAL DISORDER, AND THE FREEDOM OF THE PRESS
Stephen I. Vladeck(fn*)
Abstract: In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post's book by focusing on the potential interaction between Post's theory of "democratic competence" and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a "democratic competence" approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer the unanswerable question about what the First Amendment's Press Clause actually protects. By the same logic, though, it might also provide for greater restraint on the media insofar as it constitutionalizes conventional arguments about the need to honor the government's expertise when protecting national security secrets against public dissemination. Thus, the question Post really raises is whether such a deeper but narrower First Amendment is one to which we should aspire.
We have then, at least in my opinion, the worst of both worlds. On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.(fn1) * * * [G]overnment may guard mightily against serious but more ordinary leaks, and yet must suffer them if they occur. Members of Congress as well as the press may publish materials that the government wishes to, and is entitled to, keep private. It is a disorderly situation surely. But if we ordered it we would have to sacrifice one of two contending values-privacy or public discourse-which are ultimately irreconcilable.(fn2)
When the international organization WikiLeaks systematically disclosed to the public massive volumes of classified U.S. government information-including scores of sensitive diplomatic cables(fn3)-by posting them to its eponymous website, it presented a conundrum for those attempting to expound a comprehensive (and coherent) theory of the First Amendment.(fn4) To understand the parameters of the problem, consider 18 U.S.C. § 793(e), part of the Espionage Act of 1917.(fn5) Section 793(e) makes it a crime for anyone "having unauthorized possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," to "willfully communicate[] . . . the same to any person not entitled to receive it," or to "willfully retain[] the same and fail[] to deliver it to the officer or employee of the United States entitled to receive it."(fn6) Assume for the sake of argument that the U.S. government could make out a prima facie case that Julian Assange, WikiLeaks' enigmatic founder and editor-in-chief, violated § 793(e) by posting to public websites thousands of classified U.S. government diplomatic cables and reports (at least some of which presumably "relat[e] to the national defense").(fn7) Would the First Amendment ever provide Assange with a defense?(fn8) I have suggested elsewhere that the answer under extant precedent is quite possibly "no."(fn9) Now, change the hypothetical: What if the government separately sought to prosecute the New York Times, which published a number of articles quoting directly from some of the classified documents that WikiLeaks made public, and also posted some of the cables themselves?(fn10) Assuming that, per its text, § 793(e) applies to downstream redistribution,(fn11) would the Times have a First Amendment defense to such charges?(fn12) And what about individuals who downloaded some of the WikiLeaks documents onto their computers, or who downloaded the Times articles quoting from those documents, and "willfully retain[ed] the same"? Would they have a First Amendment defense? In general, if one believes that the answer to the First Amendment question in each of these three scenarios isn't the same, what is the First Amendment principle that supplies the necessary basis for distinguishing among them?
At first blush, it may not be obvious how these questions relate to academic freedom, or to Robert Post's discussion thereof in Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.(fn13) Indeed, other than one tantalizing allusion,(fn14) nowhere does Post's monograph grapple at all with the question of whether (or when) the government's interest in protecting national security secrets would justify infringement on otherwise constitutionally protected speech qua publication.(fn15) Instead, Post's book focuses on the complex relationship between two First Amendment values: democratic legitimation, which he defines as the commitment "to the egalitarian premise that every person is entitled to communicate his own opinion,"(fn16) and democratic competence-"the cognitive empowerment of persons within public discourse, which in part depends on their access to disciplinary knowledge."(fn17) Democratic competence, Post explains, is necessary for democratic legitimation, even though it is inconsistent with it to the extent that democratic competence requires certain speech to "be subject to a disciplinary authority that distinguishes good ideas from bad ones."(fn18) As he elaborates, "[t]he value of democratic competence is undermined whenever the state acts to interrupt the communication of disciplinary knowledge that might inform the creation of public opinion."(fn19) As such, the First Amendment itself must privilege-and protect from governmental interference-the means by which the relevant discipline creates expert knowledge in order properly to protect the integrity (the "competence") of public discourse.(fn20)
Post's central ("radical and counterintuitive"(fn21)) conclusion, that "democratic competence can be constitutionally protected only if the disciplinary practices that create expert knowledge are themselves invested with constitutional status,"(fn22) is provocative and insightful. It also has implications far afield of academic freedom, for it suggests a way of fundamentally reconceptualizing not just the underlying purpose of the First Amendment, but a host of distinctions in First Amendment jurisprudence that have typically defied easy theoretical grounding.(fn23)
Indeed, it is probably no understatement to suggest that it will take years to fully flesh out the implications of Post's thesis in areas besides and beyond academic freedom.
At least where national security and the press are concerned, though, the implications of Post's thesis are both immediate and potentially dramatic. Thus, using the WikiLeaks affair as a foil, this Essay situates Post's "democratic competence" theory within the larger-and ever-ongoing-debate over the extent to which the First Amendment protects the freedom of the press, especially in situations where the government may have a compelling interest in keeping particular information secret.(fn24) There are at least two potential consequences that would result from applying Post's theory in this context: First, as Part I explains, "democratic competence" could well provide the missing theoretical justification for reinvigorating the First Amendment's Press Clause(fn25)-a provision that the U.S. Supreme Court, for various reasons, has consistently declined to invest with substantive content independent of its immediate lexical predecessor, the First Amendment's Speech Clause.(fn26) To the extent that journalism as a discipline would qualify for the special protections attendant to Post's democratic competence approach,(fn27) his book may finally provide the hook on which courts and commentators can hang a constitutional distinction between Julian Assange and the New York Times, as opposed to merely an emotional one.(fn28)
Second, and cutting somewhat in the opposite direction for reasons elaborated upon in Part II, "democratic competence" might also have a downside with regard to freedom of the press, at least where national security secrets are concerned. After all, if one can fairly describe Post's book as arguing that there are contexts in which the Constitution should privilege "disciplinary knowledge" over amateur opinion, it is not difficult to imagine government arguments that government officials, rather than journalists, possess the relevant disciplinary knowledge when it comes to disseminating national security secrets.(fn29) Journalists, after all, are only (highly skilled) amateurs in terms of assessing the nature of threats to U.S. national security. Consequently, just as Post's theory would embolden the discipline of journalism, so too might it entrench the discipline of governmental secrecy, in which the relevant experts may all argue against publishing, among other things, the torture memos,(fn30) the warrantless wiretapping program,(fn31) black sites,(fn32) and so on.
Post might respond that this conceptualization does not apply when it...
