Vol. 9 No. 11 (November 1999) pp. 517-519.

WAR AND PRESS FREEDOM: THE PROBLEM OF PREROGATIVE POWER by Jeffrey A. Smith. New York: Oxford University Press, 1999. 324 p. Cloth $45. Paper $19.95.

Reviewed by Jerome O'Callaghan, Department of Political Science, State University of New York at Cortland.

"Emergency does not create power." So wrote Chief Justice Hughes during the great economic emergency of the 1930s; the principle is simple, and it is consistent with the thrust of the Constitution. Oddly enough the result of the Hughes opinion (in HOME BUILDING v BLAISDELL 1934) appeared to endorse an increase in state police power during an emergency. This is just one example of the problem that confounds Jeffrey Smith in his new volume WAR AND PRESS FREEDOM. Starting with a simple theory, viz. the press shall remain free from government restriction, the government has found endless ways to compromise the founder's ideal. The result is a balancing act in which first amendment commands are weighed against other "pressing" values. As Justice Holmes revealed in SCHENCK v U.S. (1919), when speech creates a clear and present danger, then all First Amendment bets are off.

Jeffrey Smith, Professor of Journalism and Mass Communication at the University of Iowa, has put together an informed, detailed and insightful analysis of the gradual erosion of a free press. Under the guise of protecting national security, First Amendment freedoms of speech and press have, to put it mildly, been put on hold. This is not a new phenomenon. Smith's book tackles censorship of the media in wartime from the eighteenth century to Operation Desert Storm.

The refreshing thing about WAR AND PRESS FREEDOM is that it takes an absolutist stand on the First Amendment, and for most of 230 pages Smith refuses to waiver. The press has "a complete exemption from having its liberty limited" by any branch of government (p. 17). He explains and defends a "constitutional design of limited government and unlimited press freedom" (p. 36). Most students of civil liberties tend to swallow the varied exceptions to First Amendment freedom created by the Supreme Court, but not this author. He is all the more indignant that press freedom is so readily curtailed at the time it is needed most. The public certainly needs an independent source of information about government; in wartime that need reaches epic proportions. Even if you find his absolutist starting point
problematic, you will still find a great deal of evidence to back up Smith's assertion that policies of suppression in war are typically "unconstitutional, unjust and impractical" (p. vii).

Who is to blame for a situation where it is necessary to destroy democracy in order to save it? Smith casts a wide net for villains and finds all the usual suspects

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and then some. He finds a "presidential-military protectorate" (p. 169), a cowardly Congress (Alien and Sedition Acts, Smith Act, and others) and a Supreme Court that is quick to allow national security to trump any other card in the constitution's deck. Smith's critique of the Supreme Court invokes a variety of famous and infamous decisions; the DENNIS v. U.S. (1951), BARENBLATT v. U.S. (1959), and GITLOW v. NEW YORK (1925) convictions are typical examples. His distrust of the Court's ability to take the high road echoes Robert Dahl's (1967) argument that the Court rarely succeeds when locked in a conflict with national lawmaking majorities.

Blame can be shared outside government too. The public is all too ready to rally around the flag and attack dissidents. The media often fail to play the heroic role; reporters and editors co-operate in their own subordination, and only occasionally stand on principle. One typically excellent chapter reveals how failed and/or inept military decisions magically become the fault of the media (e.g. Viet Nam), while reporters who lust for access to power become mouthpieces for disinformation campaigns. The chapter's title puts it well, "The Mass Media: Scapegoats and Sycophants."

Presidents receive the lion's share of the blame in this account. Lincoln and Roosevelt, each dominating the history of a century, were no great friends of press freedom. As Roosevelt's Attorney General Francis Biddle put it "the Constitution has never greatly bothered any wartime President" (p. 24). Smith's strength in this volume is his relentless use of historical example to demonstrate a pervasive erosion of constitutional principle. Lincoln's extra-constitutional methods are a perfect example, and his presidency casts a particularly long shadow. Numerous Presidents have sought to carry his mantle as the benevolent ruler who reluctantly decided
that "a limb had to be amputated to save a life" (p. 112). All kinds of Presidential misconduct (think of just about any President you can name) can fall under the rule of necessity-to-bypass-the-Constitution that Lincoln used so well. In the end, as Smith points out, the public loses out on its right to know what its government is doing.

News censorship invariably tends to aid those who have something unpleasant to hide. The Department of Defense is a prime example. Smith demonstrates how the Pentagon has in the latter part of this century developed a propaganda campaign worthy of Madison Avenue, and equally misleading. With a P.R. staff of 3,000 and a budget of $100 million (in the Reagan years), can we even be surprised? The military benefits from the process of suppression as stories on dissent (in the ranks and in the public), racial tension, desertion, strategic blunders, defective equipment etc. fall to the censor's knife. Touring through the 1960s we find the Cold
War, the Bay of Pigs, the escalation of conflict in Viet Nam and the Cuban missile crisis; all are linked by the kind of official dishonesty that would bring about Nixon's Imperial Presidency. That is, as Smith argues, the price for not taking press freedom seriously.

Upton Sinclair once asked "What good does it do us to fight for freedom abroad if, in the mean time, we are losing it at home?" (quoted at p. 133). Smith's work underscores this point by exposing the nefarious temptation to undo the Constitution in times of emergency. Relying heavily on Madison, Smith

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demonstrates how freedom of the press was not designed to shrink in difficult periods. While this reviewer is not yet ready to sit with Justice Black on the absolute side of the First Amendment, Jeffrey Smith has amassed a powerful argument that concessions to national security lead to a withering of freedom and the emergence of an "autocratic secretive" government (p. vii).

REFERENCES:

Dahl, Robert. 1967. PLURALIST DEMOCRACY IN THE UNITED STATES. Chicago: Rand
McNally.

CASE REFERENCES:

BARENBLATT v. UNITED STATES, 360 U.S. 109 (1959).

DENNIS v. UNITED STATES 341 U.S. 494 (1951).

GITLOW v NEW YORK, 268 U.S. 652 (1925).

HOME BUILDING v BLAISDELL, 290 U.S. 398 (1934).

SCHENCK v. UNITED STATES, 249 U.S. 47 (1919).