Since when did ‘security’ mean prior restraint of print media?
No one with an ounce of sense would minimize the pain and loss endured by Americans in the post-9/11, post-Enron era that began so shockingly in Lower Manhattan a little more than a year ago.
Nor should any sensible person dismiss the continuing peril posed by terrorists acting under the color of Islamo-fascism and by those corporate crooks whose deceits have betrayed -- and, in many cases, beggared -- millions of trusting employees and investors.
To link these outrages is not to suggest that they are morally or emotionally equivalent. The loss of thousands of lives in the Twin Towers cannot be compared with the diminishment of 401(k)s. People do matter more than profits -- even when the dead are strangers and the money is your own. Still, the depredations of Osama bin Laden’s murder gang and the rogue capitalism practiced by Enron and its ilk have conjoined to undermine Americans’ long-standing confidence in their physical and material well-being.
As bad as this situation is, it is being made worse by overreaching government authorities, who are behaving as if anything called “security” now trumps every other established American value. How else to account for a proposal now before the Securities and Exchange Commission that would allow the federal government to compel newspapers and magazines to print certain information?
In the face of recent allegations that stock analysts have issued false opinions to drive up the value of certain stocks and win lucrative investment banking opportunities for their firms, the stock exchanges are under intense pressure to restore the appearance of integrity to the analysts.
Last week, the New York Exchange and the National Assn. of Securities Dealers, which operates Nasdaq, sent to the SEC a proposed regulation governing stock analysts’ conversations with print journalists. In interviews, analysts would be required to disclose any potential conflict of interest posed by their own stock ownership. If a newspaper or magazine fails to print that information along with any comments attributed to the analyst, the analyst would be forbidden to speak again to the offending publication. Failure to abide by the regulation could result in fines or suspension of the analyst.
What we have here is an attempt to launder a constitutionally impermissible prior restraint of speech by calling it a securities regulation.
The SEC shortly will open the issue to public comment, but 1st Amendment experts already are appalled
“This is nuts,” said Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota. “Some ideas are so stupid they don’t deserve the dignity of careful analysis, and this is one of those, if ever I’ve seen one.
“This is clearly illustrative of the fact that the appetite of federal regulatory agencies to control speech is insatiable and, if they can do so under the guise of protecting the public, so much the better. It’s sinister, really. But, unfortunately, it’s also illustrative of the Kafkaesque way in which federal authorities change the meaning of words to suit their purpose. It has become common since Sept. 11, but I feel it must be resisted, though I’m amazed at their arrogance in this case.”
Lee Levine, a Washington-based 1st Amendment lawyer, agreed. “I’ve never seen anything like this,” he said. “There is no question that it raises the most serious constitutional concerns. Imposing what amounts to a de facto command that the press publish certain information or risk losing access to its sources is a pretty draconian step from a 1st Amendment perspective.”
Levine said the proposed regulation appears to fly in the face of the 1974 U.S. Supreme Court ruling in Miami Herald vs. Tornillo.
In that instance, the justices struck down a Florida law that ordered newspapers to print the responses of political candidates who were the target of certain kinds of allegations by their opponents. “The court,” Levine said, “held that requiring the press to publish anything it does not want to publish is just as bad as naked prior restraint and that both are entirely forbidden by the 1st Amendment.”
In Levine’s view, “The best thing we can say about this proposal is that it is a misguided attempt to react to corporate scandals of the Enron and WorldCom variety, and we only can hope that cooler heads prevail.”
In fact, this week, Nasdaq’s operators, responding to protests from the print media, said they would submit a revised regulation to the SEC by the first of the year.
However, Edward A. Kwalwasser, executive vice president of the New York Stock Exchange, said his organization intends to seek implementation of this rule. “We think it’s very important that this information gets out,” he said.
In fact, broadcast media, which are regulated by the Federal Communications Commission, already have accepted a similar regulation. TV interviewers routinely ask analysts on business programs whether they hold any of the stocks under discussion. The Times, as with most other major newspapers, prints such information when it is deemed relevant.
However, said Kirtley, “if the SEC attempts to make this mandatory, it will face a constitutional challenge, since there is no conceivable theory under which its authority extends to the press. This is all part of a new government attempt to regulate speech, not by going after the press, but by going after the speaker. It’s precisely what they tried to do by trying to criminalize leaking by government employees.”
The language of the law, as Justice Oliver Wendell Holmes said, is not logic but experience. And, if long and bitter experience has taught the United States anything, it is this:
The Constitution and our Bill of Rights are not a promissory note to be redeemed in some ideal future. Rather, they are a blueprint for the day-to-day realization of those indispensable freedoms that are the bare requisites of a healthy civil society.
The Constitution may not be a suicide pact, but neither is it a luxury, an indulgence to be enjoyed in tranquil safety. There never has been such a time and there never will be -- not now, not ever.
