Cornell Law Review Volume 69 Article 5 Issue 4 April 1984 New Seditious Libel Judith Schenck Koffler Bennett L. Gershman Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Judith Schenck Koffler and Bennett L. Gershman, New Seditious Libel, 69 Cornell L. Rev. 816 (1984) Available at: http://scholarship.law.cornell.edu/clr/vol69/iss4/5 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE NEW SEDITIOUS LIBEL Judith Schenck Koffert & Bennett L Gershman t Let all men take heede how they complayne in wordes against any magistrate, for they are gods. -- Star Chamber saying You've just got to trust us. -Richard Helms, former CIA Director INTRODUCTION Seditious libel is the crime of criticizing the government. It trans- forms dissent, which the first amendment has traditionally been thought to protect, into heresy. Fundamentally antidemocratic, the distinguish- ing feature of seditious libel is, as its nomenclature suggests, injury to the reputation of government or its functionaries. Those who impugn au- thority's good image are diabolized and their criticisms punished as blasphemy. In this way, the doctrine lends a juristic mask to political repression. Seditious libel is alive and well despite attempts of judges and scholars to knock it on the head once and for all.' It is difficult to recog- nize, however, for it wears the mantle of official secrecy and waves the banner of national security. It creeps into legislative chambers, inspir- ing measures to silence those who accuse the Central Intelligence Agency of treachery and deceit.2 It captures the mind of a president who admonishes that those who exercise first amendment rights have "the responsibility to be right."3 More insidiously, it has infiltrated the t Fellow, Society for the Humanities, Cornell University; Professor of Law, Pace Law School. tt Visiting Professor of Law, Syracuse University College of Law; Professor of Law, Pace Law School. The authors would like to thank Professor Owen Fiss for his valuable suggestions. 1 See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 2 See, e.g., Intelligence Identities Protection Act of 1982, 50 U.S.C.A. §§ 421-426 (West Supp. 1983); see also N.Y. Times, Oct. 5, 1983, at Al, col. 1 (Senate Intelligence Committee unanimously approves bill to exempt certain CIA files, including files involving covert action, counterintelligence, and high-technology spying devices, from Freedom of Information Act). 3 See Gross, Showdown at the White House, THE NATION, AUG. 6, 1983, at 97, 115; see also N.Y. Times, Dec. 16, 1983, at A27, col. 1; N.Y. Times, Oct. 20, 1983, at A17, col. 1 (discussing President Reagan's March 11, 1983 directive and other recent efforts aimed at forcing thousands of federal employees to submit to random lie-detector tests). 1984] SEDITIOUS LIBEL courts, where it threatens to sabotage the vital core of the first amendment. What matters most about the doctrine is its life in the courts, for only the judiciary can deliver the coup de grace to a force that corrodes constitutional freedoms of speech and press. Legislators may revive the crime of seditious libel, and presidents may deploy it to persecute their rivals, but as long as courts have believed that the fundamental purpose of the first amendment is to protect the right of political dissent, sedi- tious libel has been beaten back. Whenever courts have become fright- ened, confused, or forgetful, seditious libel has reemerged to do its mischief. Ever since medieval days, authority has attempted to suppress ru- mors and scandalous discussions about itself on the grounds that such discussions cause a disturbance of the peace. Authority has had a point. For dissent calls into question official orthodoxy, and critics put them- selves on an equal footing with the authority criticized. Historically, whenever scandalmongers and disaffected persons vilified their superi- ors, they could indeed create conditions of unrest. In these days of nuclear weapons, one of the most awesome roles of established authority is that of guardian of national security-the cur- rent idiom for what Was once the king's peace. National security, whatever else it may mean, has lately been invoked to silence public discussion of information deemed by the authorities to be secret or "clas- sified."'4 Yet some dissidents have questioned the fitness of established authority to be the guardian of national security. Several former gov- ernment officials and even a curious journalist or two, not content with the paternal "you've just got to trust us," 5 have sought, despite attacks on their loyalty, to test whether the shield of secrecy is a veil for incom- petence, corruption, or deceit.6 Surely the government is entitled to some secrets in these days of potential instant annihilation. The point is whether the government is entitled to those secrets simply because secrecy is necessary to enhance its reputation. To penetrate this secrecy state for the purpose of public 4 See, e.g., Haig v. Agee, 453 U.S. 280 (1981); Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982); Baez v. United States Dep't of Justice, 647 F.2d 1328 (D.C. Cir. 1980); Halperin v. CIA, 629 F.2d 144 (D.C. Cir. 1980); United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cer. denied, 409 U.S. 1063 (1972); Agee v. CIA, 500 F. Supp. 506 (D.D.C. 1980). Estimates as to the percentage of documents that are improperly classified as "secret" range from Arthur Goldberg's estimate of 75% to former Department of Defense classification policy expert William G. Florence's estimate of 99.5%. See Katz, Government Information Leaks and the First Amendment, 64 CALIF. L. REv. 108, 118 n.34 (1976). 5 Address by Richard Helms to the National Press Club, quoted in P. AGEE, INSIDE THE COMPANY: CIA DIARY 9 (1975) and Barnet, Book Review, N.Y. REV. OF BOOKS, Dec. 30, 1971, at 6 (reviewing Marchetti's, The Rope Dancer). 6 See Agee v. Muskie, 629 F.2d 80, 105, 113-14 (1980), rev'd, 453 U.S. 280 (1981); Agee, Where Myths Lend to Murder, COVERTACTION INFORMATION BULL., July 1978, at 4. CORNELL LAW REVIEW [Vol. 69:816 discussion would seem, on democratic principles, a duty of the highest order. How else will citizens be certain that those to whom they have entrusted so much power-megatons of destructive force in the case of the hydrogen bomb or the worldwide network of espionage and "intelli- gence" activities in the case of the CIA-have not become intoxicated by it? Yet the assault on official secrecy has lately been treated as a kind of lee majest& This article traces the dark roots of seditious libel, its obscure his- tory in this country, and its ominous revival in three recent court opin- ions. Examining the early history of seditious libel, we attempt to isolate its elements and tacit premises. As we shall demonstrate, authoritarian- ism, political insecurity, diabolization of dissenters, and a hysterical fear of opposition have traditionally accompanied waves of prosecution for seditious libel. A belief in official infallibility, originally an explicit premise of seditious libel, remains its implicit ideological mainstay, as we shall see when we trace our nation's dark tradition of repression. With the light of history, we then explore the three recent decisions that resurrect this ignominious judicial tradition. The first two decisions involve former CIA officials who exposed the machinery of official espionage as incompetent or corrupt. In Snepp v. UnitedStates, 7 the political dissident, who had published the shabby de- tails of the CIA's last days in Vietnam, was punished under the pretext that he had violated a secrecy agreement." In Hazg v. Agee, 9 another dissident official was punished for disclosing secrets about the CIA's "dirty work" on the unfounded claim that his revelations had incited murder. In United States v. The Progressive, Inc., 10 a journalist exposed the prevailing public illusion that the design of the hydrogen bomb was as impenetrable as the ark of the covenant. Flaunting official orthodoxies, all three dissenters claimed the right to discredit publicly the secrecy state. Flaunting the first amendment, the courts barred their way. In the concluding section of the article, we speculate how courts should decide these cases under an enlightened view of freedom of speech and suggest the outlines of a first amendment theory that would spell the death of seditious libel. 7 444 U.S. 507 (1980). 8 Cf McGehee v. Casey, 718 F.2d 1137, 1148 (D.C. Cir. 1983) (court, in rejecting for- mer CIA agent's challenge to CIA censorship, asserted that "reviewing courts should conduct a de novo review of the [censorship] decision, while giving deference to reasoned and detailed CIA explanations of that . .decision). 9 453 U.S. 280 (1981). 10 467 F. Supp. 990 (W.D. Wis.), appealdismissed, 610 F.2d 819 (7th Cir. 1979). 1984] SEDITIOUS LIBEL 819 I SEDITIOUS LIBEL IN HISTORICAL PERSPECTIVE A. English Roots "All silencing of discussion," wrote John Stuart Mill, "is an as- sumption of infallibility."" If Mill is correct, debates about freedom of speech ultimately are debates about power and its legitimacy-about authority. Historically, the power to silence unorthodox political ex- pression has required an autocratic regime with a license to suppress dissent. The legal equation of dissent with treason was, however, a rela- tively modern development.