As we all – that is you and I and just about all thinking people who’ve been around a while – pretty much suspected, there is going to be a congressional response to the Wikileaks revelations. A bill, commonly referred to at the moment as the SHIELD BILL, is being constructed right now in both houses of Congress. If passed, it will amend the 1917 Espionage Act and it will make it a serious crime to “knowingly and willfully” disseminate or distribute “in any manner prejudicial to the safety and interest of the U.S.” any classified information having to do with the intelligence activities of our nation.
That’s a mouthful and it may seem, on the surface, to present no threats to our individual constitutional rights or liberties. However, organizations like the ACLU are now looking beneath the surface to see what all the formal words mean.
The general feeling among progressives and others who deem our individual rights and liberties to be very important – and even sacred –is that the wording poses some threat if applied to non-government employees who happen upon such information.
The constitutional measurement in the release of such information by private individuals will come down to the standard established in 1919 by Justice Oliver Wendell Holmes about whether it is a “clear and present danger” for the nation.
Is it ever proper to repress free speech? Yes! Yes, when there is a national emergency justifying such repression. Justice Louise Brandeis established the measuring device in a 1927 decision when he reminded us that the founders “did not exalt order at the cost of liberty.”
If those decisions were applied to today’s Wikileaks exposures, the government would have a hard time arguing that there is a clear and present threat to the nation by the publication of these documents – or that a period of national emergency exists.
When we examine and think about the new SHIELD BILL we should make sure that it does not reduce by one iota the standard established by Justices Holmes and Brandeis.
Keep your eyes and ears open on this one!
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