July 19, 1971
Page 25962
THE RIGHT TO KNOW AND THE RIGHT TO BE LEFT ALONE
(An address by Senator EDMUND S. MUSKIE to the National Magazine Editors Award Luncheon, New York City, April 26, 1971)
I take particular pride in the invitation to address this distinguished audience when I recall that your counterparts in the newspaper business had President Nixon as their guest speaker this year.
The newspapers, of course, are inevitably concerned with the here and now, but magazine editors can take the long view. I hope you and I are taking the same long view.
In one respect the President was more fortunate than I. He used the occasion of the newspaper editors dinner to get his 1971 Presidential Press Conference out of the way. Those of us who are not presidents do not get off so easily.
Those of us who are not presidents also hear a lot these days about the need for preserving traditional values against destructive attacks from all sides. These attacks, it is said, are part of a conspiracy to overthrow the head of the FBI and replace him with a regime that will take orders from some outside power – such as the Government of the United States.
At a time of crisis in our values, it is not surprising that our leaders should be concerned with preserving traditional standards. But it is astonishing that, while professing such concern, they should be conspicuous accomplices in the erosion of values as fundamental to a democracy as the right to know and the right to be let alone.
Such political values serve a special need in our society. They are among the dreams of liberty that have given meaning to our history. More than most peoples, we have found our identity and our unity in our national dreams. At a time when there is so much disillusionment with the present state of the union, and so much bitter division as to where we should go from here, we can ill afford to be careless with our first principles.
I hope that carelessness is the proper word to describe the attitude of the present administration toward the public's right to know about the government and their government's policies. I am sure that you of the periodical press need not be reminded of the repeated attacks the Administration has mounted on some newspapers and most television journalism.
I do not believe that the freedom of the press makes journalists immune from attack by men in public office. I would hate to think that the freedom of the press means that politicians must always turn the other cheek. In fact, a hostile editor or writer is always a tempting target. Some of my best friends are journalists, but I have noticed that as a general rule they are likely to be even less popular than politicians.
While political leaders may be entitled to hit back at the press from time to time, a government firmly dedicated to the public's right to know and to the principle of freedom of the press must bend over backwards to avoid any hint of threat or intimidation.
In this Administration there has been no such bending over backwards. Apart from ritual disclaimers, this Administration has made no serious effort to dispel the widespread belief among television newsmen and broadcasters that its attacks are designed to make them more responsive to the party line. Even if these beliefs are mistaken, their existence is a threat to the public's right to know.
Such fears are not quieted by the Administration's aggressive use of its subpoena power to obtain reporters' confidential notes and sources. Nor can such fears be allayed when the government tries to force a major television network to disinvite an opponent of legislation supported by the Administration so that the Administration's own lobbyist might state his case without opposition.
Moreover, the Administration's war with the press is being fought in an atmosphere that is dominated by evidence that it is indifferent to the public's right to get the facts. The Administration attacks the press, not so much for opposing the Administration's policy, but for reporting facts that contradict the Administration's line. Among the new executive prerogatives now being claimed by the government is the right to prominence, if not to dominance, for the official version of the facts, whether or not that version is the right one.
If the Administration has decided that there is no hunger in America, it will seek to discredit the press that finds hungry people.
If the Administration has decided that the invasion of Laos was a glorious victory, woe unto the reporters who feature evidence of a defeat.
If the expert interpretations of the monthly employment statistics by labor department civil servants conflict with the Administration's official gloss on those statistics, then the expert briefings have outlived their usefulness.
In the things that it thinks matter most to the public, the Administration's basic instinct is to hide the ball and, if possible, the players. This attitude is understandable in an Administration in which the medium is so large a part of the message, and in which the message is so often contradicted by the facts. But it is an attitude that does not dissipate the impression that this Administration is hostile to the public's right to know.
To judge by what we have been reading in the press of late, and particularly in some of your magazines, you would think the right to know belongs only to the government.
We have learned that army units have been compiling dossiers on people who attend antiwar meetings.
We have learned that the FBI has been compiling dossiers on people who attend antipollution meetings.
We have also learned that the FBI keeps close tabs on people who consort with black activists or student activists or, so it seems, almost anyone who supports changes in our society.
We have learned from Senator Ervin's subcommittee that all sorts of governmental institutions are compiling impressive volumes of personal information about people who come in contact with the government. And we have been reminded of just how frequent a tool of government the practice of wiretapping has become.
Thanks in no small part to the courageous work of magazine editors, we are beginning to realize that this is an area in which the public's right to know has been almost wholly ignored. Even now, we know only that the government is watching more of us than we thought. We do not know which of us or how many. We do not know what information is in our own dossiers, or what are its sources. We do not know whether it is accurate, or what use will be made of it.
We are told, for example, that the FBI infiltrated Earth Day meetings in order to watch a few individuals with known propensities for violence. Yet the FBI's report on Washington's Earth Day activities runs to eleven pages and hardly mentions such individuals. Instead, it takes a general inventory of the participants, and focuses on the presence of members of certain controversial political organizations.
It does not seem too much to ask of a free government why they happened to collect all this information about ordinary political activity of ordinary citizens, and what they propose to do with it now that they have it.
Who will be told, and with what implications, that each of many thousands of Americans concerned about the desecration of their environment were consorting on Earth Day in the company of radical political groups?
This is one case where what we don't know does hurt us. The immediate hurt that all these unanswered questions does to us is plain enough. They give rise to the suspicion that people will be known to the government by the political company they keep; they may be one day held accountable by their government for their efforts to change its policies. Such suspicions destroy the spontaniety of a free society and paralyze the workings of a free political process.
It is in order to answer these gnawing questions and hopefully to allay the suspicions they raise, that I recently proposed a means of supervision and control over our domestic intelligence operations.
But the indifference of the Administration to the implications of widespread government surveillance of ordinary citizens does more than chill the exercise of political freedom, just as its hostility to the news media does more than chill the freedom of the press. In both cases, the harm done to our shared ideals may well be the more lasting injury to our society.
I do not need to preach to this audience on the overriding importance of the freedom ofthe press in our system. In fact, I once knew a magazine editor who thought the freedom of the press was established in the First Commandment.
But the first amendment has had a heavy load to carry in recent years. It has had to bear the onus of protecting, not only the press – which is burden enough – but also the rights of dissent and protest and academic freedom. In the process it has become identified with most of the wrenching changes and much of the turbulence of our times. The elementary right of the press to inform has been swept up in the controversies involving these other important First Amendment freedoms. In too many instances the Administration has used public uneasiness over those controversies as a weapon in its effort to damp down challenges from the press. The right of information is too basic to be destroyed in a society which claims to hold its governors accountable for their acts. No government can be held accountable, except arbitrarily, by men who are ignorant of the crucial facts. And no government can be held truly accountable if it controls the information on which it is judged.
Furthermore, great as is its practical value to a free government, the symbolic value of the public's right to know is equally great; for it represents our faith that we can still control our government.
The public's right to know is protected by the press's right to be let alone by government. But the right of the rest of us to be let alone is a different sort of right. It represents to us our faith, not that we can control the government, but that in some things at least we can escape its control.
Justice Brandeis once called the right to be let alone "the right most valued by civilized men."
In some areas, the right to be let alone is explicit. The First Amendment makes it clear that we have a basic right to be let alone in anything that concerns our religious or political beliefs. On that ground alone, general surveillance and reporting of political activities is offensive to rights which ought to be beyond attack.
The Bill of Rights also protects us explicitly against unreasonable searches and seizures of our homes and of our persons. That protection is good enough to keep the government out of our closets, and it may well be wondered if it is not also good enough to keep them off our telephones.
But the right to be let alone is more comprehensive than these specific constitutional protections. Freedom is not a simple thing or a sometime thing. And the Constitution was intended to protect against more than the midnight rap on the door. Our Government was put together on the theory that free men were their own sovereigns except for the specific powers that were conferred upon government.
Our founders' concept of freedom revolved around the notion that a part, and indeed the greater part, of a man's life was his own business and none of his government's. They believed that the State was ultimately an instrument for serving men, and not the other way around. They put the burden on government to justify its intrusion upon the lives of citizens.
Today, in a complex society, where the role of government is very nearly pervasive, these concepts of liberty mean even more to us than before. In the last analysis, the right to be let alone is the guarantee that we still retain the sovereignty, the power of control, over the parts of our lives we call our own.
It is, therefore, an affront to our most traditional values to hear the government say, as we have heard it say, that it will vigorously oppose any restraints upon its right to collect and file information about its citizens.
It is an affront to hear the government say, as we have heard it say, that it has the "inherent right" to tap the telephones of anyone who it believes may pose a threat to our national security, without answering, or explaining, or justifying to anyone, without obtaining a warrant from a magistrate, and without complying with the rules laid down by the Congress to control electronic eavesdropping.
It is an affront to hear the government say, as we have heard it say, that we must have faith in its own good sense and self-restraint.
These bold claims insult our history and stand our very concept of freedom on its head. As a federal judge pointed out a few weeks ago, in rejecting the claim to an inherent right to wiretap, we threw out notions such as that, nearly 200 years ago, along with the divine right of kings. It is difficult to believe that we now have a government that would wish to restore them. Perhaps those new uniforms for the White House police that entertained us a year ago were more serious straws in the wind than we knew.
I do not believe that the Administration has set out to destroy our liberties. If it had, I do not think that it could succeed in the short time remaining to it. But mere insensitivity to our first principles can do them grievous harm when it is displayed by the government. It can tear the already frayed fabric of our community of common ideals. A government which mistrusts large numbers of its own citizens and turns on the values that give substance to the society will soon have something to fear, even if it had nothing before.
The public's right to know, and the citizen's right to be let alone are not only the hallmarks of a free society: they are also the ideals and the symbols that still unite us. The right to know and the right to be let alone are, in a real sense, the flags we can all wave. It is unforgivable that our government should trample them.
The only way to keep those ideals from being trampled is to uphold them.
That's your job, and mine too.