National Security versus Free Speech: A Comparative Analysis of Publication Review Standards in the United States and Great Britain
![handle is hein.journals/bjil15 and id is 719 raw text is: NATIONAL SECURITY VERSUS FREE
SPEECH: A COMPARATIVE ANALYSIS
OF PUBLICATION REVIEW
STANDARDS IN THE UNITED STATES
AND GREAT BRITAIN
Fear of serious injury cannot alone justify suppression of free
speech . . . It is the function of speech to free men from the
bondage of irrational fears.
- Louis Brandeis1
I. INTRODUCTION
Free speech is in danger of being compromised by controls
to protect national security2 in the United States and Great
1. Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring).
2. Precise definitions do not exist for national security in United States and Brit-
ish statutes. For purposes of national security, the classification system of the United
States Government is established by Executive order. The present Executive order on
National Security Classification does not specifically define national security informa-
tion, or classified information, as it is also known; instead, the Executive order delineates
three levels of such information: top secret, the unauthorized disclosure of information
that reasonably could be expected to cause exceptionally grave damage to national
security; secret, the unauthorized disclosure of information that reasonably could be
expected to cause serious damage to national security; and confidential, the unau-
thorized disclosure of information that reasonably could be expected to cause damage
to national security. Exec. Order No. 12,356, 3 C.F.R. 166 (1982), reprinted in 50 U.S.C.
§ 401 (1982).
The national security information classification system was established by Exec. Or-
der No. 10,501, 3 C.F.R. 979 (1949-53), as amended, 3 C.F.R. 292 (1971), and Exec. Or-
der No. 11,652, 3 C.F.R. 339 (Supp. 1974). The orders stated that they created the only
federal system of classification.
Problems of overclassification abound within the system. According to a
congressional estimate, the [Fleaeral [G]overnment now routinely classifies
some 20 million documents a year. Of this mountain of paper, some 350,000
documents are stamped top secret. . . . A staff study on The Protection of
National Secrets, issued in 1985 by the House Judiciary [S]ubcommittee and
the Post Office and Civil Service [S]ubcommittees, called for basic reform of
the system. Its principal recommendation was that the government sharply re-
duce the number of documents it wishes to keep secret and, at the same time,
sharply reduce the number of officials with access to truly essential defense
secrets.
'Only a fraction of the information classified is of a military nature and of
value to the Soviets,' the report held. 'Much material is classified to protect
diplomatic relationships, hide bargaining positions, or prevent premature dis-
closure. All too often, documents are classified to protect politically embarrass-
ing information or to hide government misconduct. .. .'](ViewImageLocal?handle=hein.journals/bjil15&div=29&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most