War and Press Freedom: The Problem of Prerogative Power by Jeffery A. Smith

By Jeffery A. Smith

Within the centuries from the ratification of the 1st modification in 1791 throughout the Gulf warfare in 1991, the yankee press lacked an sufficient correct to research and record at the nation's armed conflicts. whilst regulations have been challenged as violations of the structure, army laws and federal legislation have been justified as important lower than the "higher legislation" of survival. Is there legislation extra vital than the structure which permits prerogative powers for use in a time of battle or nationwide difficulty? This groundbreaking and provocative research, reading legislations and heritage over those 2 hundred years, argues that press freedom can't and shouldn't be suspended in the course of armed clash. the army and the media needs to interact simply because neither has authority over the opposite.

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15 Protections for press freedom were prominently featured in state constitutions and could be easily understood as preventing the government, particularly the branch that wrote the laws, from imposing any con- The Purpose of the Press Clause 29 straints. "16 When the federal Constitution was written in 1787, its advocates maintained that a press guarantee was not necessary because the new, constitutionally limited government was not being given any authority over the press. At the Convention, the only recorded statement on a motion to declare " 'that the liberty of the Press should be inviolably observed' " came from Roger Sherman, who insisted that it was not needed.

32 He said that understanding the Constitution required looking at its "clear and precise expressions" of enumerated powers rather than the "more doubtful and indefinite terms" used to describe a general authority such as providing for the nation's defense. " Alexander Hamilton reiterated the most salient objections to a bill of rights when he said in the Federalist that it would be difficult to list and define all rights in detail and that it would not be necessary because the people were sovereign and retained all their liberties.

The Americans who demanded a guarantee of press freedom did have in mind certain inflexible principles, principles that have been violated ever since by government officials who have the sworn duty to uphold them. I. A refusal to allow any official restrictions on the press—in the military or any other context—would have been easy to conceive when the First Amendment was added to the Constitution. 7 The two authors observed that honest leaders would want to have their actions subjected to such scrutiny and that only the guilty had anything to fear.

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