The nation’s need to protect its national security has long been seen to conflict with the rights protected by the First Amendment in some cases. Information is a valuable commodity during wartime, and maintaining control over what information reaches the enemy has been decisive of the outcome of numerous battles and wars. For an excellent discussion of some practical examples in which control of information determined the outcome of battles, see Jon Latimer, DECEPTION IN WAR (2001). This has often tempted the government to roll back the protections of the First Amendment during wartime, as accurate reporting on warfare by civilians can interfere with propaganda and disinformation campaigns. Schenck v. United States, 249 U.S. 47 (1919). This conflict between the wartime needs of the state and the freedom of speech rights protected under the constitution has arisen in a number of contexts, most recently in response to the “embedded journalism” program used during the 2003 Iraq War. Embedded journalism programs permitted journalists to travel along with U.S. military units and report on the conflict, subject to restrictions established by the Pentagon. This program received mixed reviews: while it was credited with providing a substantial increase in access to current information to journalists, it has also been criticized for imposing restrictions on coverage and for breaching the wall of independence between press and state that should ideally exist. This paper will address the various issues relating to the conflict between national security and the First Amendment in the specific context of the embedded journalism program. It will attempt to place the embedded journalism program in the context of free speech principles and to evaluate the effects of this program on the ability of the press to perform its constitutional functions. Finally, where relevant, this paper will address how the views of Justice Douglas, the topic of the class under which this paper is submitted, apply to the current conflict.

II. The Role of the Free Press in American Society

Any evaluation of the propriety of embedded journalism requires as a prerequisite a background theory of the role of the free press in American society. Differing views about the purpose and benefits of a free press may very well lead individuals with similar views on the First Amendment to take different positions on whether it is proper for the government to interact with and restrict the media in this way. This section will consider two potential views on the role of the press and their possible implications for the embedded journalism issue. The primary conflicting models of the press see its ideal role as either a neutral, primarily informative body or, alternatively, as an advocate of the people whose purpose is to hold vigil against potential government abuses of authority.

A. The Press As Informer

One potential view of the role of the press in a democracy is as a neutral, informative body whose collective goal should be to accurately inform the public about the events of the day. Under this view, the press is important to democracy primarily as a “necessary vehicle through which self-governing citizens in a democratic society learn what they must know to exercise their constitutional franchise wisely.” Marin R. Scordato, Book Review: The Elusive Paradigm of the Press, 72 B.U.L. REV. 673, 674 (1992). The public in a democracy should

Supporters of this model argue that it that it creates several benefits. Information provided by the press to the public is crucial to allow them to make decisions about governance: in essence, the purpose of the press is to allow the general public to perform their decision-making role in democracy. Alexander Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF GOVERNMENT 22-27 (1948). The press as a neutral informer insures accuracy: instead of focusing on protection of the ability of the press to investigate and hold the government’s feet to the fire, this model would focus on allowing the press access to accurate information that could benefit the public in its democratic decision-making.

Under this model of the role of the press, the impetus for strong protections provided by the First Amendment is weaker than under other models. Because the press is seen as having primarily an informative role, the government certainly cannot impose restrictions that would require inaccurate reporting. The government could, however, utilize a number of restrictions that would restrict the press without running afoul of its democratic purpose. Delays in the reporting of information might be appropriate in many cases. Arguably, since the public’s role of decision in democracy occurs only periodically during elections, under this press model the need for information is not as urgent. So long as the press is able to communicate a piece of information to the public in time for it to digest it and include it in its electoral decisions, the purpose of the press has been fulfilled.

In the context of embedded journalism, this model would suggest the broad permissibility of government restrictions on the actions of reporters embedded with military units. If the primary role of the press is as a truthful provider of information to enable the public to make civic decisions, there is probably a large swathe of information about wartime activities that is not relevant to decisions about the propriety of the war. Even where information is relevant, it may not be immediately necessary to the public and thus might be restricted. This would be in stark contrast to the second potential model of the press, which would require protection of full access to any information that might suggest impropriety. Thomas G. Havener, Note, Assault on Grenada and the Freedom of the Press, 36 Case W. Res. 483, 496-98 (1986) (analyzing press restrictions during the Grenada conflict and their interference with the watchdog model).

This article will be continued in Part II of National Security and the Press.

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