Free Speech: Eight Questions With Geoffrey Stone

This is the fourth in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. Follow me @jonathanwpeters on Twitter. 

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. From 1987-1994, he was dean of the University of Chicago Law School, and from 1994-2002 he was provost of the University of Chicago. He is chairman of the board of the American Constitution Society. His most recent book is Speaking Out: Reflections on Law, Liberty and Justice (2010). Stone’s other recent books include Top Secret: When the Government Keeps Us in the Dark (2007), War and Liberty: An American Dilemma (2007) and Perilous Times: Free Speech in Wartime (2004), winner of the Robert F. Kennedy National Book Award, the Los Angeles Times Book Prize for the Best Book of the Year in History, the Political Science Association’s Award for the Best Book of the Year in Political Science and Harvard University’s Award for the Best Book of the Year in Public Affairs.

What’s the most serious threat today to free speech?

Government secrecy. The capacity of the government to keep information from the public is effectively a means of censorship, without actually restricting speech as such. With a strong executive branch, today we find ourselves in a position where we can say what we want, but we can’t get the information we need in order to speak intelligently.

Last summer, you wrote in the New York Times that on matters of press freedom and government transparency, President Obama has “shown a disappointing willingness to continue in his predecessor’s footsteps.” Among your criticisms: Obama has a bad record on whistle-blower protection, and he has “zealously” applied the state-secrets doctrine. How is that possible with a president who promised to build the most transparent administration in history? What happened?

It’s important to acknowledge that the president has made significant changes in many respects. It’s not as if he’s replicated the principles by which his predecessor operated. But the disappointments come from the phenomenon that once people are in power, they have the sense that, “I’m not going to shield the public from information unless there’s a good reason, I’m in the best position to make that judgment, and I’m a trustworthy person.” That’s human nature, and it’s part of the problem. We can’t have a system that relies on trusting the government.

How can an elected official break out of that mindset? 

Every administration needs strong and respected voices whose job it is to advocate for civil liberties. The problem is that we don’t have people in that role—we don’t have cabinet-level people who are part of the process and understand that their job is not to enforce the law but to advocate for individual liberties. They would make sure that other officials don’t discount the importance of individual liberties for reasons of pragmatism or expediency. Too often, officials see themselves generally as friends of civil liberties, so they don’t think they need anyone looking over their shoulders. But in most cases those officials have responsibilities that compete with civil liberties. It’s a self-defeating thing.

You wrote in 2011 in the New York Times that “the First Amendment leaves the government extraordinary autonomy to protect its own secrets,” but it does not “allow the government to suppress the free speech of others when it has failed to keep its own secrets.” What’s the reason for that balance?  

It’s an awkward balance. Start from scratch and ask yourself the question, “When can the government prohibit the dissemination of information on the ground that disseminating it would do more harm than good?” Answering that question in an informed, disinterested manner would be a very difficult thing to do. The interests on both sides are incommensurable. It’s difficult to know how to weigh one against the other on a case-by-case basis, taking into consideration the unique circumstances of one case or the other. That would lead to a high degree of unpredictability, a lack of clarity and an emphasis on immediate rather than long-term concerns.

So what the Supreme Court has done in this context is to overprotect speech—to hold that certain speech cannot be restricted unless, say, it’s likely to produce a grave, imminent harm to the nation. As a principle, that might not seem logical. It might seem there’s no reason for the government to be in that position. But the Court has put the government there because censorship pressures are so great that unless the legal test dramatically overprotects speech, it will end up under-protecting it.

That being said, the government has been very successful at keeping its secrets by making it a crime for public employees to reveal certain information. Ideally, the government would keep information secret only if publishing it would be more harmful than beneficial to the nation. But the government has far more latitude than that to restrict the release of information. Its authority to restrict speech at its source, when the information is within its control, is very broad. The hope, then, is that these two extreme standards—one that overprotects speech once it reaches the press, the other that under-protects speech at the source—will achieve a happy medium. That hope, though, doesn’t always match reality.

We’ve discussed those issues most recently in the context of WikiLeaks. I’ve written about it, you’ve written about it, and you’ve testified before Congress about the First Amendment issues the website has raised. One related issue is whether WikiLeaks doomed the Free Flow of Information Act of 2009, the bill that would’ve created a federal journalist-source privilege. Is WikiLeaks to blame?

No, that bill wasn’t going anywhere. WikiLeaks didn’t have anything to do with it.  It failed for other reasons.

Why did it fail, then? And why have so many other versions failed before it?

Earlier versions failed because the press insisted on absolute protection. Members of Congress, rightly or wrongly, refused to go there. Really, the press allowed the perfect to be the enemy of the good, and only recently has there been real talk about crafting a bill, even if imperfect, that would be compatible with the current state of affairs.

The most recent bill stalled because of disputes about whistleblower protection and the extent to which the press should be protected when national security interests are at stake. Reporters wanted broad protection, and members of Congress again weren’t prepared to go there. They believed that if national security interests were implicated, then the privilege automatically should be overridden. That’s been the sticking point. WikiLeaks would’ve exacerbated the bill’s chance of success if it had gone forward, but I don’t think in the first place the bill had a chance of going forward. It had been idling for quite a while, and nothing was happening. To blame it on WikiLeaks is silly.

One of the sticking points in drafting a federal reporter’s privilege has been defining the concepts “journalist” and “journalism.” Is there a way to define them precisely?

It doesn’t matter a whole lot. Anyone who wants to leak information can give it to organizations that will disseminate it, and with the Internet, it’s possible for people to disseminate information to a mass audience in ways not contemplated at, say, the time of the Pentagon Papers. If you have at least one set of journalists protected by the privilege, protected by the statute, then that’s all you need. You can take information to those journalists, and they can publish it or not. And if you publish it yourself, you don’t need a privilege—you don’t need a privilege to protect yourself.

It’s a difficult line-drawing problem, but the government is allowed to distinguish among speakers and among journalists. The government already does that. For example, it regulates the broadcast medium in ways it doesn’t regulate cable or newspapers. It allows certain reporters to attend press conferences while excluding others. If the government wants to extend the privilege only to certain types of reporters, the government can do that—it would be constitutional if done in a reasonable manner. It’s true that for privilege purposes, everyone wants to be a journalist, but from a whole-system standpoint, it’s not really necessary.

Some say the Roberts Court is a friend of free speech, others say it’s a foe, and many say it’s somewhere between those extremes. What’s your take?

It’s a selective friend of free speech. On the one hand, it’s a friend when it likes the speech, and that’s been true when the Court has addressed corporate expenditures, commercial advertising or religious expression. In those cases, the Court is extremely speech protective. On the other hand, it’s not a friend when the conservative majority doesn’t like the speech in question, and that’s been true in the Humanitarian Law Project case and the “Bong Hits 4 Jesus” case. The speech there offended the conservative justices, so they found ways—in not carefully crafted opinions—to allow the speech to be restricted.

Then there are a few peculiar cases, in which it was clear the conservative justices didn’t like the speech, and you expected them to rule against the speech interests. I’m thinking, for example, of Snyder v. Phelps and the violent video games case. But in those examples, at least some of the conservative justices ruled in favor of the speech interests. They’re intriguing and puzzling cases, because they don’t fit the pattern. I’d love to understand better than I do why the conservative justices decided those cases the way they did.

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