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Freeing Speech

Freeing Speech: The Constitutional War over National Security

John Denvir
Copyright Date: 2010
Published by: NYU Press
Pages: 204
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  • Book Info
    Freeing Speech
    Book Description:

    The United States is in the midst of a heated conversation over how the Constitution impacts national security. In a traditional reading of the document, America uses military force only after a full and informed national debate. However, modern presidents have had unparalleled access to the media as well as control over the information most relevant to these debates, which jeopardizes the abilities of a democracy's citizens to fully participate in the discussion. In Freeing Speech, John Denvir targets this issue of presidential dominance and proposes an ambitious solution: a First Amendment that makes sure the voices of opposition are heard. Denvir argues that the First Amendment's goal is to protect the entire structure of democratic debate, even including activities ancillary to the dissemination of speech itself. Assessing the right of political association, the use of public streets and parks for political demonstrations, the press' ability to comment on public issues, and presidential speech on national security, Denvir examines why this democratic model of free speech is essential at all times, but especially during the War on Terror.

    eISBN: 978-0-8147-8534-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction: Constitutional Wars
    (pp. 1-10)

    While I am not a great admirer of President George W. Bush, I must admit that he did much to energize public interest in constitutional law. Time and again after one of Bush’s expansive uses of presidential power, students and friends would ask me, “Can he do that? Is it constitutional?” That turns out to be a question that will take a book to answer. The question itself assumes that the text of the Constitution draws bright lines between constitutional and unconstitutional actions. But the United States Constitution does not automatically churn out clear answers. It’s a 200-year-old document whose...

  5. 1 The National Security Presidency
    (pp. 11-32)

    In the introduction, I mentioned President Bush landing a fighter plane on an aircraft carrier to announce military victory in Iraq. For me this scene symbolizes a vision of the presidency that presents a serious challenge to the official constitutional interpretation of presidential powers in the area of national security. For reasons I will explain later in this chapter, it is also the de facto constitutional view over a large range of governmental programs. I call it the National Security Presidency. It argues for the necessity of quick, decisive action to protect America from foreign enemies. Readers who have followed...

  6. 2 The Manufacture of Consent
    (pp. 33-56)

    While chapter 1 discussed the president’s power to act in the national security context, this chapter focuses on the power of presidential speech in the area of national security. It turns out that the power of speech is just as potent a weapon in the president’s arsenal as the power to act. But while the scope of the president’s power to act has been the subject of much constitutional debate, there has been no similar discussion of the constitutional dimensions of the power of presidential speech. There have been no Supreme Court decisions and no spirited debates in law reviews....

  7. 3 The Rise and Fall of the First Amendment
    (pp. 57-80)

    I have argued in the first two chapters that the National Security Presidency and the singular powers of presidential speech threaten to corrupt our debate on national security issues. I believe that the necessary constitutional response to this danger is an expansive interpretation of the First Amendment that ensures that opposing voices will be heard. In the 1960s, in a series of free speech cases involving civil rights, the Supreme Court gave us a good start towards such an interpretation, and this chapter begins by describing those cases. Readers may wonder why I choose to discuss cases concerning a domestic...

  8. 4 Democracy in the Dark
    (pp. 81-104)

    We saw in chapter 2 how the power of presidential speech overwhelms the normal workings of our democratic decision-making process on national security issues. The smart response to this state of affairs is not to silence the president but to better support the opportunity for opposing voices to be heard. Unfortunately, as we saw in chapter 3, the current official First Amendment does not do that. In fact, First Amendment rights in the Burger, Rehnquist, and Roberts Court eras are significantly narrower than during the time of the Warren Court. On some issues, like the right of peaceful protest, which...

  9. 5 Free Speech Activists
    (pp. 105-128)

    We saw in chapter 2 that the president’s symbolic role in our political system, combined with his control over national security information and his unparalleled access to the media, permit him to dominate debate on national security issues. Chapter 4 then argued that one way to reestablish the proper balance would be to support the press’s ability to maximize the flow of national security information to the public. But the press can never imagine, nurture, and publicize the alternative ideas on national security and other issues that democratic debate requires. Its primary role is reactive rather than creative; the press...

  10. 6 The Supreme Court
    (pp. 129-150)

    The failure of the Supreme Court to interpret the First Amendment in a way that adequately supports democratic debate has been a recurring theme of this book. This chapter concentrates on two other failures of the Supreme Court to fulfill its duty to (in John Marshall’s words) “say what the law is.”¹ The first is the Court’s refusal to clearly reject the National Security Presidency’s claim that the president has independent power to initiate the use of military force. Instead, the Court has adopted a vague formula that in practice condones the president’s independent use of force. The second failure...

  11. Afterword: A Human Rights Constitution
    (pp. 151-156)

    Justice Brandeis’s opinion inWhitney v. California¹ is a classic statement of the American theory of democracy. I wish to especially focus on his insistence that we must value “liberty as an endandas a means” (emphasis supplied). Brandeis is speaking about the “liberty” of freedom of speech, but his point applies to a much larger set of human rights ranging from personal rights like privacy to social rights like education. Privacy and education are good things in themselves because they “make men free to develop their faculties,” but they are also the means by which democracy ensures that...

  12. Appendix: Selected Provisions of the U.S. Constitution
    (pp. 157-158)
  13. Notes
    (pp. 159-170)
  14. Bibliography
    (pp. 171-174)
  15. Index
    (pp. 175-188)
  16. About the Author
    (pp. 189-190)