Professional Documents
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V O LU M E 3 N U M B E R 4
Catos
Letter
A Q U A R T E R LY M E S S A G E O N L I B E R T Y
T
hough I consider myself more a political liberal
than a free-marketeer, I am a great admirer of the
Cato Institute for its consistent positions in favor
of freedom and especially of freedom of speech. Many
organizations to which I may be closer politically do
not show such consistency. Too often, both sides of
the political debate show a willingness to protect
only the speech they like because they want to see
their own opinions protected.
The first time I ever touched the issue of cam-
paign finance was in 1972 on a matter in which I
represented the New York Times. It arose under the
Campaign Finance Act, which has been changed
many times throughout the years to further tighten
the limits on campaign spending. In 1972 campaign
finance law said that if a corporation or union took out
a newspaper ad that was favorable to a candidate for fed-
eral office, the money spent on the ad would count as a
contribution to that candidate. Even if there was no coordi-
nation between the newspaper and the campaign at all, the
newspaper had to keep track of
the cost of the ad and get a cer-
prearranged as a legal test. But, nonethe- ad. We got the order and later a ruling
less, the Times took the position that that the statute was unconstitutional.
unless the ACLU obtained certifications I thought about that case a lot while I
from the candidates, it would not print was representing Republican Sen. Mitch
the ad. The ACLU said that it would not McConnell in his 2003 challenge to the
2 obtain the certifications, and the ACLU McCain-Feingold campaign finance
then sued the Federal Election Commis- reform law. In McConnell v. Federal Elec-
sion. The Times submitted a brief to the tion Commission, our allies were almost all
court in support of the ACLUs position, on the right politically. Although there was
and they hired me as their attorney. some genuine libertarian support, includ-
In that case, we were supported com- ing the ACLU, no other liberal organiza-
pletely by more liberal people in our tions would join our very large coalition.
community. The ad was anti-Nixon. The In that world, campaign finance reform is
plaintiffs were the Times and the ACLU. now thought to be a good that good peo-
It was obvious to people whose political ple should not oppose. That the very
views I may tend to share that you could- advertisement at issue in the 1972 case
www.cato.org
C A T O S L E T T E R
V O LU M E 3 N U M B E R 4
4
issue-for-issue answers at the
same time and to the same Leave a
degree. It did require that
Legacy of
Liberty
if you took a position on
a controversial issue of
public importance you
had to give some time
to an opponent. But Are you concerned about the future of
concern about the free- liberty in America? To leave a lasting
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C A T O S L E T T E R
V O LU M E 3 N U M B E R 4
Amendment in almost all circumstances. The press lost. However, Justice Lewis
I dont mean he always votes the way that Powell wrote a separate concurring
I and lawyers who take similar positions opinion that seemed to say that there
might choose, but he is always sympa- should be some sort of balancing test in
thetic to and appreciative of the strengths which the interests of the First Amend-
of First Amendment arguments, and I ment and the interests of law enforce-
think he deserves credit for that. ment were considered by the Court.
As I look back on my career, I see cer- Justice Potter Stewart later gave a speech
tain classic First Amendment cases. By saying that he felt the opinion was four
classic, I dont mean that they are neces- and a half to four and a half, since he
sarily great cases, but classic in that they couldnt tell which side Justice Powell
are in the tradition of serious, important was on. Justice Powells opinion in the
First Amendment challenges. My earliest Branzburg case is no clearer today than it
First Amendment work was protecting was in 1972.
journalists confidential sources in the I currently represent Judith Miller
late 1960s. The 1968 Democratic Con- and Matthew Cooper, two journalists
vention in Chicago spurred a number of who have been subpoenaed to testify
criminal and civil cases in which subpoe- before a grand jury about the leak of the
nas were served on the national press. identity of CIA agent Valerie Plame.
Before the 1960s, fewer subpoenas were The First Amendment interest here is
served on journalists because there was a a step removed from one in which
shared sense that journalists were not speech itself is banned. The argument is
part of the political process. In the late that there must be some right under the
1960s and early 1970s, however, prose- First Amendment to gather the news,
cutors and defense lawyers started to get and that the right would be unduly bur-
the idea that journalists were a good dened, impaired, and limited if journal-
place to go for information. Journalists ists could not make promises of
always seemed to be around when news- confidentiality and keep those promises.
worthy matters were occurring, and When I started to practice law in this
those newsworthy matters frequently led area, there was no case law saying there
to litigation. was even a right to gather news.
As a young lawyer, I became involved Run of the mill libel and privacy cases
in the 1972 case that became known as are a different sort of case. Cases in the
Branzburg v. Hayes, which asked whether libel area have all been transformed as a 5
journalists could conceal the identities of result of the Supreme Court decision in
sources to whom they had promised con- New York Times v. Sullivan in 1964. Even
fidentiality. Paul Branzburg had written if the press says something about a public
an article for the Louisville Courier-Jour- figure or public official that turns out not
nal designed to show how easy it was to to be true, it is still protected as long as
make hashish in Louisville. In order to the speaker said it in good faith and did
get access to the areas where the drug not have a high level of awareness of its
was made, he had to agree not to disclose probable falsity. That doctrine, actual
whom he saw making it. The case ended malice, is quite literally unknown in the
in an enigmatic five to four decision. rest of the world.
Looking at the cases I chose to The Brooklyn Museum case was the only
describe in my booksome of which I one that was close. English friends of
picked because they were important mine told me that even English judges
cases and some because I had especially might not have allowed Mayor Giuliani
enjoyed them and wanted to talk about to do what he was doing, not because
themI was struck by the thought that of any English equivalent of the First
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