Supremes Secretly Stiff the Press

We Could Be Heroes

And if Breyer's Bartnicki concurrence doesn't have a chilling effect on the press, consider Rehnquist's dissent, which argues that the right to privacy should trump the First Amendment no matter what. Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, calls the dissent a Trojan horse, noting that if the dissenters had prevailed, giving individuals the power to suppress free speech, "it would open the floodgates for the government to justify its actions because it was trying to protect people's privacy." Under that rationale, privacy would be "not just a shield for individuals, but a sword the government can use to overcome someone's First Amendment rights."

Here's how that might pan out: Last fall, Congress approved a law that would have made it a felony for government officials to disclose any information that was deemed classified. The New York Times editorialized that such a bill could be used to "shield misconduct, block access to historical papers," and "deny Americans the chance to debate critical national issues." To his credit, Clinton vetoed the bill. But under Bush, one can imagine renewed support for keeping all government documents under wraps. If a test case makes it to the Supreme Court, Breyer and O'Connor might join the Bartnicki dissenters, resulting in a block of five justices who believe that privacy rights can overpower the press.

"The irony is that the right of privacy was supposed to protect an individual against the government," says Leslie. "It was never supposed to be something that gave the government more power."

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