Two simple words: “seditious libel.”
They invoke images of redcoats, Whigs and Tories, tar and feathers.
We fought the War for Independence, in part, to rid ourselves of that odious threat, through which monarchies stifled any expression, true or false, factual or opinionated, and which dared challenge the omnipotence of the representatives of the throne.
Now photographs of military coffins draped in the stars and stripes, of Iraqi prisoners humiliated by American GIs and of the war dead on “Nightline,” draw criticism, repression and in the case of the Dover war dead, an outright government ban. It is worth remembering seditious libel’s inglorious role in our nation’s history and its poisonous tendency to treat truth and falsehood with equal disrespect — and to brand legitimate criticism of government policy at a minimum unpatriotic and worse, treasonous.
The freedom of the press guaranteed by the First Amendment can be threatened in many ways. The most direct threat, rare in our constitutional scheme, may be either censorship or mandatory licensing by the government in advance of publication.
Of particular importance to our revolutionary founders was the rejection of the very idea of seditious libel: the idea that one could libel the government. Seditious libel — a remnant of law left by the crown — was broadly defined as anything that “excited disaffection” against constituted authority. Under the doctrine of seditious libel, both true and false criticism of the government was considered libel. In fact, legal thought of the pre-Revolutionary era proclaimed that “the greater the truth, the greater the libel.”
Early in our nation’s history, partisan debate between Federalists and their opponents generated a shameful episode during which the United States government rekindled seditious libel to punish critics of the administration.
Seditious libel emerged again in World War I, as the government again punished opponents of the administration, this time citing wartime morale as justification for a series of restrictions regrettably aimed at those merely expressing their heartfelt opposition to the war.
First Amendment protections broadened with time to protect such speech, because the courts grew increasingly uncomfortable with the concept of seditious libel and with vague definitions of incitement that hinged on the “tendency” of words. Likewise, the courts began to parse government regulations focused on controlling what people say, as opposed to reasonable measures aimed at policing the time, place and manner of speech.
Government regulations based on content are sustained only if they pass the “strict scrutiny” test, in which courts ask whether the restriction is necessary to achieve a compelling governmental interest, and whether other less destructive means of First Amendment rights exist. For the state to restrict expression based on content alone requires the direst of circumstances.
When the state seeks to bar expression, it must offer much more than broad pronouncements about “protecting morale” or “sustaining the war effort.”
Such was the rationale of the World War I Espionage Act prosecutions, a relic in First Amendment terms but analogous to several recent developments.
This history lesson brings us full circle to the Defense Department ban on showing images of the return of the bodies of soldiers killed in action since the start of the war in Iraq.
The government edict — issued in March — stated that there would be “no arrival ceremonies of, or media coverage of, deceased military personnel returning to or arriving from” air bases.
The ban recently was circumvented after thememoryhole.org, a Web site dedicated to combating government secrecy, mounted a successful legal challenge under the Freedom of Information Act. The reason for the FOIA disclosure was remarkably simple and says much about the propriety of the ban itself: the Freedom of Information Act contains no exemption that would cover the photos. But the single release of the Dover photos obscures the larger issue of the ban itself.
The Pentagon was forced to release hundreds of photographs, which immediately appeared on the site and quickly made their way to news organizations around the world.
The Pentagon’s absolute ban on coverage of the arrival of fallen troops should be analyzed for what it is: a content-based prohibition backed by the legal force of the United States. Against the backdrop of seditious libel, and of content-based regulations, the ban appears suspect at best — overly broad and overreaching at worst.
The Pentagon and other officials have invoked the privacy of the soldiers’ families as their rationale for the ban. Taking this argument at face value, there is little evidence that the photos generating so much controversy raise such troubling privacy issues as to justify a ban on them.
The coffins, anonymous, closed and draped in American flags, simply do not invade the privacy of anyone. The use of privacy as a justification for secrecy is a well-worn theme these days. But in order for privacy to rise to a level deserving legal protection, there must be harm — embarrassment, emotional distress, the release of intimate detail or any number of other evils to be avoided.
No such harm comes with flag-draped coffins of unidentifiable soldiers. No individual’s right to privacy is even at stake.
Even if one were to accept the specious privacy claims presented, the privacy interest would have to be weighed against the public interest served by coverage of the arrival of fallen soldiers — a value long recognized as a countervailing interest in privacy cases.
It is difficult to understate the public interest of returning war dead, the very real image of war writ large in a faraway conflict. The news media have a long history of respectful treatment of such images, which evoke myriad emotions but always underscore the reality of warfare.
If such a privacy interest exists, it certainly is a one-way street: Defense Department officials see no such privacy concerns with the display of dead Iraqis, going so far as to exhibit the corpses of Saddam Hussein’s sons Uday and Qusay.
If privacy is an insufficient rationale for the Defense Department’s ban, attention must turn to the ban’s unstated yet likely purpose: to better control coverage and images of the downside of conflict. Mindful of the nightly images that the Vietnam War ushered into America’s living rooms, the Defense Department has taken the opposite approach, a total ban on coverage.
A complete government prohibition on truthful, factual coverage of returning war dead must serve a compelling government interest to withstand scrutiny. Administrative efficiency or base security would easily serve to justify limited restrictions of coverage, such as the time and place of coverage.
But they do not justify a complete ban.
When such interests are critically examined, one is reminded of the tenets of seditious libel, and its prohibition of expression that could be deemed critical of government or even perceived as critical of government when viewed through the wide lens of public opinion. Rather than a demonstration of the newsworthiness of the image, the undeniable truth of a photographed image of flag-draped coffins, to the Defense Department, is greater proof of the seditious tendency of the expression.
We fought a war to rid ourselves of such heavy-handed government control, only to find ourselves, more than two centuries later, taking up the First Amendment battles of the past.
Charles Davis, co-chair of SPJ’s Freedom of Information Committee, is an associate professor, news-editorial, and executive director of the Freedom of Information Center at the University of Missouri School of Journalism.
Tagged under: FOI