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Q&A With Bob Levey
Washington Post Columnist
Tuesday, Feb. 19, 2002; Noon EST

"Levey Live" appears Tuesdays at noon EST. Your host is Washington Post columnist Bob Levey. This hour is your chance to talk directly to key Washington Post reporters and editors, local officials and people in the news.

Today, Bob’s guest is Geoffrey Stone, professor of University of Chicago Law School and scholar of constitutional law.

Geoffrey Stone is a world-class scholar of constitutional law and has a particular interest in the relationship between the military and press in times of war. He has written numerous articles on such matters as freedom of the press, freedom of speech, freedom of religion and the privilege against self-incrimination. He has also written about the Supreme Court, the FBI and the constitutionality of the use secret agents and informants by the police.

A graduate of the University of Pennsylvania and the University of Chicago Law School, Stone was the editor-in-chief of the Law Review at Chicago. He was a law clerk for U.S. Court of Appeals Judge J. Skelly Wright in 1971 and a clerk for Justice William Brennan of the U.S. Supreme Court in 1972. He joined the faculty at Chicago in 1973, was dean of the Law School from 1987 to 1993, and just recently stepped down as provost of the University of Chicago.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Bob Levey: Good afternoon, Professor Stone, and thanks very much for joining us today. Let's begin with the tension between the American military and the American press. There's very little question that reporters have been kept far away from first-hand views of the war. Just last week, an American military officer pointed a gun at a Washington Post reporter who wanted to check out what had happened during a bombing raid in Afhganistant. What's your assessment of the relationship between these two great American institutions?

Geoffrey Stone: This is a very tricky issue. Although the press is generally free to publish almost any information it can obtain, it has very little right actually to compel the government (military or otherwise) to provide information. In a situation like the war, this gives the military a great power to control the flow of the information to the public. This should always be a source of concern.

Deeply Concerned: The news today that the adminsitration feels it is necessary to send false information and stories to foriegn press in order to build support for their military actions around the globe bothers me. First, if the world supports us, as we are often told, why do we need to gain their support?

Second, why do we need to lie to gain support? Isn't this what Enron did? Didn't the lies come crashing down on them?

I suppose there is nothing in the Constitution about telling the truth, and letting things succeed or fail on their merits, right?

Geoffrey Stone: There is nothing in the Constitution that requires the government to tell the truth. On the other hand, it is not inconceivable that a Court would hold that a systematic pattern of lying to the American people about a matter of great importance could violate the Constitution. Certainly, in some circumstances, it could be an impeachable offense.

Fairfax, Va.: Welcome Dr. Stone,

I was wondering on your standpoint about the media and their relay of sensitive information on troop positions, artillery, and possible targets in foreign countries to the American people. Yes I see that we have a right to this information by law, but does this not put our soldiers in danger by broadcasting this information on the news where any country may see?

Geoffrey Stone: The balance between the "public's right to know" and military "necessity" is a very difficult one. It is generally agreed that the press can be prohibited from disclosing invasion plans, for example, where such disclosure would itself thwart the plan. In general, however, the press may disclose the kind of information you've posited. The assumption of the American system is that expression is protected unless there is a compelling reason to restrict it.

Gdynia, Republic of Poland: Dear Sir, I would like to ask you about limits of the freedom of speach for polititicians. Firstly: are there any? Secondly: some politicians during parliamentary debates use words that shock and offend other politicians or common people. Those words are usually being said in public and in front of media. Should there be any differences in treating such cases if the offended one is a politician or "common man/woman"? The European Court of Human Rights in its case-law says so. (for examples cases: Oberschlick v. Austria(no2)or Castello-Roberts v. Spain).
Thank You in advance for your answer

Geoffrey Stone: In the United States, pulic officials have the same right of free expression as other citizens. Being elected to public office does not require a sacrifice of those rights.

Bob Levey: Since you're a renowned faculty member at the greatest university in the world (guess where Levey went to college!), how is free speech on campus doing these days? From where I sit, it seems endangered. A newspaper publisher nearly gets booed off the stage on a California campus for daring to talk about civil liberties during wartime. Associations track "anti-American" speeches by professors. How does it seem from where you sit?

Geoffrey Stone: Free speech on campuses is generally robust. The real "threat" tends to come not from the univerisities or colleges themselves, but from students who tend to be less tolerant of views they find offensive. This does dampen discussion of some issues. But one can also see this in a positive light. I may have a "right" to espouse views that are hurtful, but it may not necessarily be a "good" thing for me to do so. On the whole, though, this tendency does concern me. I think colleges and universities should foster a culture of tolerance of other views; whereas some (perhaps many) students thing they should foster a culture of respect for other groups that cuts against free expression.

Navy Yard, Washington, D.C.: What do you think the chances are that the courts will declare the issue advertising limits for independent groups prior to an election unconstitutional?

Geoffrey Stone: More likely than not they will hold them unconstitutional, but it's all in the details of the regulations.

Washington, D.C.: There is a dispute pending between a former Los Alamos scientist and the U.S. Government over whether he can publish a book concerning his travels to China, particularly accounts that post-date the individual's work that was bound by his secrecy agreement. Although the scientist properly submitted his work for prepublication review, the government will not allow his attorney -- though cleared -- to review the manuscript during the challenge process because the attorney allegedly, according to the government, has no "need-to-know." This question is now before the District Court. The Executive Branch argues that the Judiciary cannot adjudicate a national security question such as "need-to-know" and to do so would violate the doctrine of separation of powers. The plaintiff asserts this violates his First Amendment right.

What do you think?

Geoffrey Stone: It is appropriate (and, in my view, necessary) for the judiciary to review such claims and for the information to be available to the attorney representing the party who wants to disclose the information.

Springfield, Va.: What standards or rules of ethics guides journalists actions? None! CNN loves to show a camera being blocked by a soldier complaining that they should not film seriously injured servicemembers as proof that censorship does happen. I applaud that soldier's action. The media, if allowed, would have put those pictures on the air before anyone could notify family members -- and maybe sent reporters to "ambush" grieving families to boot.

Geoffrey Stone: The "media" are a very diverse lot. Some are more responsible than others. On the whole, I think the mainstream media have been quite responsible in their coverage of the war on terrorism. They are caught in a very difficult dilemma. On the one hand, we rely on them (and not only on the government) to provide us with full and accurate information about the actions of our military. On the other hand, the run the risk of being accused of revealing information that can harm the war effort. For the most part, I think they do this quite well. If the military were more forthcoming in its provision of information, the tension might be less.

La Plata, MD: Dr. Stone, recently in college we had a discussion about the press in military conflicts. Many students held the thought that if D-Day were to happen tomorrow, it would fail incredibly because some sleazy tabloid would print the information about it before hand. It's kind of scary that people view the media like this.

Is this scenario even possible? Or does the press corps have some sort of internal checks and balances to keep this from happening and therefore keeping them on the front lines for more stories?

Geoffrey Stone: There are very few examples of actual situations where the media (sleazy or otherwise) has published information that subverts a U.S. military action. To some extent this is because there are real legal constraints on this (in a situation where publication would in fact undermine the pending military action), and to some extent it is because (even) journalists know the difference between news and treason.

Bob Levey: The student press has always been a special beneficiary of the First Amendment, but also a special victim. At the high school level, no student editor has real freedom to publish (for example) birth control information or racially charged controversy. The principal will stop it--or fire the editor afterward--or both. When will the Supreme Court decide that the First Amendment applies to every journalist, not just those who do it for money?

Geoffrey Stone: The issue is not whether the journalist does it "for money," but what is the role of a student newspaper in the overall context of a public school. To make the point, suppose we're talking about a school paper for a grammer school. I assume you would agree that some limitations would be appropriate that would not be appropriate for a high school paper, a college paper or a newspaper of general circulation. The same principle arguably applies to a high school paper. Of course, there are difficult line-drawing issues, and I suspect I would tend to draw the line closer to where you do than where some principals do. But the Court has held that some limits can be placed on those papers based on the age of the students and the function of the paper in the school, and in principle, at least, this seems to me defensible.

Orono, ME: After the last election, there was some sentiment for Congress to revisit the concept of the electoral college. But the events of September 11 seem to have driven the issue to the backburner - if it's on the stove at all.

As the next presidential election nears, are we likely to see debate about the electoral college resurface? Is it likely that we'll see any change?

Geoffrey Stone: No.

Arlington: What do you think about the Supreme Court's decision today that it is not against the law to let one student grade another's paper?

Geoffrey Stone: Well, I haven't had a chance yet to read the opinion, so I really can't comment on it in an informed manner. In principle, however, I see no problem with this. To the contrary, I think reading and evaluating other students' papers is a very valuable way for students to learn.

Falls Church, VA: Some questions regarding constitutional law and the Civil War:
1. As the US Constitution existed in 1860, were the states which seceeded prior to the firing on Ft. Sumter acting unconstitutionally and thereby treasonous or not?
2. Given the threats to security faced by Pres. Lincoln and the city of Washington, did he have much choice, realistically that is, in suspending the Writ of Habeas Corpus? Other than to tell him he wasn't allowed to do so, did Chief Justice Taney have any other recourse available to him to end the suspension imposed by Lincoln?
3. As a result of Lincoln's use of power during the Civil War, is there now some unwritten understanding that the President automatically has "special" powers during times of national emrgency?

Geoffrey Stone: The general view is that secession is not permitted. In effect, it amounts to an amendment of the Constitution, which is authorized only by a proscribed manner.

It is assumed that the president has some "unwritten" powers during time of national emergency, but they are limited by similarly unwritten (and written) constraints. On the whole, I think we have tended to yield too much rather than too little authority to presidents in such periods.

Bob Levey: Do you expect the Supreme Court to revisit the issue of racial profiling, given the events of Sept. 11, the ethnic similarities of the 19 hijackers and the clear discrimination against people with dark skin since then?

Geoffrey Stone: This would be a very difficult issue for the Supreme Court, as it is for the society. I think the Court would invalidate any "gross" form of racial profiling, but would not say that it is unconstitutional to take race, gender or ethnic origin into account as one of many factors in identifying "suspects." For example, if X is robbed by a white female, it would make no sense not to take "white" and "female" into account in looking for suspects. That is a form of "racial profiling" that is certainly permitted. When it crosses the line into unconstitutional profiling is an important and difficult question.

Chicago IL: Prof. Stone, what's your assessment of the 5th Amendment invocations that the various Enron executives have made so far? Is it normally permissible, for example, for a situation such as we had where Lay's wife went public about her husband's predicament, then Lay went before Congress and got slammed for an hour before taking the 5th? What realistic options does Congress have to compel any meaningful testimony? Thanks.

Geoffrey Stone: Congress can grant immunity to a witness in order to compel his or her testimony. The immunity does not have to be immunity from prosecution for the underlying crime, but only immunity from the use of the testimony against the individual.

Arlington, VA: For an example of how the press publishes secrets at a possible wrong time, the Chicago Tribune of December 7, 1941 had a big headline on its front page U.S. War Plans.

During World War II correspondents traveled with the troops, wrote their stories, went through censorship, and had them published. Ernie Pyle and Raymond Clapper were two prominent examples which could also include A. J. Liebling and Ernest Hemingway. Could such an arrangement work today?

Geoffrey Stone: Such an arrangement could work today if (a) it was the only means by which the reporters could gain access to the information, (b) there was some measure of trust between the military and the media, (c)the military did not abuse its ability to censor, and (d) the media complied with the censorship decisions of the military. In all likelihood, this could work. The primary danger in this approach is that the reporters become co-opted and lose their independence because of their desire to get information. In effect, they can be made an arm of the government, which is not a good structure for the long-run.

Bethesda, MD: I think that the problem of free speech on campuses isn't a problem of folks who have anti-American views getting their viewpoints supressed. If you want to talk like that, you can expect to be booed and derided. Get used to it.

No, the problem is with the political correctness that has run amuck. That's my real concern. If you don't toe the ivory tower line, you get in trouble.

That's ridiculous. If you're going to use a hate speech code to stop the Nazis from speaking, you should use the same thing to keep rabid anti-Americans from speaking. But that doesn't happen.

Geoffrey Stone: There have been instances of both anti-American and pro-American views being "suppressed." Of course, what counts as "anti-American" is often very subjective. Is it "anti-American" to argue that U.S. policy has created much of the underlying problem and that it is understandable that people in other cultures resent the intrusion of American values? As for hate speech, the argument (with which I don't agree, by the way) is that such expression should be regulated because it subordinates historically oppressed groups. Whatever else one thinks of such a doctrine, it quite logically wouldn't apply to anti-American speech in the United States.

Bob Levey: Your view, please, of the Attorney General's recent decision to hold dozens of terrorism suspects for weeks without charging them with a crime?

Geoffrey Stone: I find this very troubling. We don't know nearly enough about who these people are, what they're accused of, why they're being held, whether they have lawyers, whether they've had hearings, how they're being treated, and why they've been selected. From a civil liberties perspective, this is the most problematic decision of the administration in the war on terrorism. I am simply at a loss to understand the legitimate need for such secrecy in this context. It is troubling that Americans are not much more vocal in their concern about this matter.

Bob Levey: It's more than a year since the Supreme Court ruled on the Florida chad question (and the constitutional issue of equal protection under the law). Now that the smoke has cleared, did the court's ruling make constitutional sense?

Geoffrey Stone: No.

Washington, D.C.: Professor Stone --

Thanks for answering our questions today. My question pertains to domestic opinion freedom of the press in wartime.

I am a U.S. citizen of Pakistani origin. Having seen first-hand how degrading to democracy press censorshop can be, I am very appreciative of the (on paper, at least) free press than Americans enjoy. That is why it irks me a bit when I read or hear my fellow Americans clamoring for press censorship. Some people claim it is unpatriotic to criticize the government in wartime. I say, it is unpatriotic NOT to question government. It is unpatriotic not to be a well informed citizen of a democratic society. I think it was Ben Franklin who said that people who are willing to sacrifice a little bit of freedom for the sake of security deserve neither one.

I am curious to know what you think from a philosophic standpoint, given you have studied the subject long and hard. Is it against the principles of democracy when one does not question?

Geoffrey Stone: You have it exactly right. The highest duty of a responsible citizen in a self-governing society is to question the government. Democracy works best when the public is involved, curious and skeptical. The notion that a patriot does not ask the hardest questions is backwards.

washington dc: Doesn't the Constitution contradict itself when it guarantees free speech yet denies District residents a vote in Congress? [edited for space]

Geoffrey Stone: Yes.

New York, NY: This question probably won't get much air time today because it's so dated.. but I'm still shocked by the Casey Martin decision. I was once a professional athlete and side with Scalia on this one. A sport is completely and absolutely defined by its own set of arbitrary rules. I still cannot fathom how the Supreme Court decided, whether it seems fair or not, that it knew better than the PGA what golf was/is. What did you think of this decision?

Geoffrey Stone: Can baseball can blacks?

Bob Levey: Let's say I call you a nasty name, and post that nastiness on the Internet. Do you have a right to sue me for slander, in the same way you would if that nasty name were printed in a newspaper? If you're not sure (and many lawyers are not), doesn't this mean that we need a constitutional amendment to handle freedom (and lack of it) on the Internet?

Geoffrey Stone: There's no question that a libel on the Internet is as actionable as a libel in a newspaper. The tricky question is one of jurisdiction and choice of law. Suppose New York, Illinois and California have different rules about libel. Which law governs when I communicate this over the internet? Obviously, the material is available at all places simultaneously. This is even more immediately a problem in the obscenity context. Whose "community standards" govern sexually explicit material on the internet?

Arlington, VA: During the WWII it took days or weeks for a
story to be published in the Post or Times.
Today in Afghanistan it can be published in
close to real time giving the enemy an
advantage. A reporter can file his story to
the online edition in matter of minutes. Most
news orgainizations dont publish the names or
phots of victims of crimes. Is an injured
soldier that much different?

Geoffrey Stone: That's a great point. The speed of communication has certainly changed these issues. It's my sense that, in general, the media do try to respect the desire not to make public an individual soldier's death before the family can be notified. But the speed and ease of communication greatly complicate this situation.

Bob Levey: Can you please clear up for us whether non-Americans (for example, people arrested in Afghanistan and brought to Guantanamo Bay) have any constitutional rights?

Geoffrey Stone: Any individual who is brought within U.S. legal jurisdiction has constitutional rights. However, the substantive meaning of those rights may vary based on the circumstances. I agree with Colin Powell that the individuals brought to Guantanamo Bay should be treated as prisoners of war under international law. That does not give them the full panoply of U.S. constitutional rights, but it does give them important safeguards concerning process and conditions of confinement.

Bob Levey: More on racial profiling: Many commentators have said that we will never again see internment the way we saw it (of Japanese-Americans) during World War Two. Yet the same Constitution was in effect then, and it didn't stop a wartime President from doing what he thought best. Do you believe that President Bush could order full-scale internment of Arab-Americans (or Muslims) and justify it by saying that this is a war, we have to take all reasonable precuations?

Geoffrey Stone: One never knows in wartime. It seems unthinkable today that the president could initiate such a policy or that the Supreme Court would uphold it. In general, we tend to learn something from our past experience. Ordinarily, when we overreact in a war by unduly sacrificing civil liberties, we don't repeat the same mistake again in the next war. During the Alien and Sedition Act era in the 1790s, we went overboard in restricting expression, and later condemned that and avoided a precise repate. During World War we prosecuted more than 2,000 dissenters who opposed the War and the draft. Thereafter, we acknowledged our error and we haven't repeated it since. I would guess the same is true about broadscale internments. On the other hand, the "internment" of several hundred alien Muslims, without adequate explanation from the government, is an act that I believe we will come to regret later.

Bob Levey: Let's say a history professor at The University of Chicago decided to teach his students that the Holocaust never happened. Any serious scholar would object. But what if the professor said he has the constitutional right to teach whatever he likes? I say this is a perversion of the First Amendment. Do you agree?

Geoffrey Stone: I also agree that a teacher who wants to teach his students that the earth is flat has no constitutional right to do so.

SE: The media in general and the Post in particular are generally responsible. But how do you control the tabloid papers, Hustler magazine, and any other cowboy with a TV camera who wants to call himself a journalist? Until we come up with a way to discriminate among media outlets (based upon past experience?), the governemt is forced to treat them all according to the lowest common denominator.

Geoffrey Stone: This is a serious problem, although not a new one. The press has always included respectable and not-so-respectable elements. To some extent, the government does distinguish among them (who has access to the president, for example), but this has to be done very carefully. The danger is that access will be granted to those who support the government, rather than to those who are "responsible."

Oh, The Irony: In the '80s and '90s the university extremists were trying to limit the free speech of those they disagreed with, trying to ban ROTC and CIA recruiting on campus, and hounding away speakers with whom they disagreed, such as former U.N. Ambassador Jeanne Kirkpatrick and leaders of the Nicaraguan Democratic Resistance. Now they are aghast that anyone is merely monitoring the anti-American/pro-terrorist rantings of tenured radicals. Seems like another variation on the old theme of "free speech for me, but not for thee." Comments?

Geoffrey Stone: "Free speech for me, but not for thee" is the very heart of the free speech problem. In the 50's it was Communists who were not welcome; certainly gays have not been welcome in the past. The challenge to a university -- and to a self-governing nation-- is to teach the basic principle that free speech for me requires free speech for thee.

Bob Levey: Many thanks to an old friend and a great professor, Geoffrey Stone. Be sure to join us next week, Feb. 26, when "Levey Live" discusses how to make it as a free-lance writer. Our guest will be one of the foremost freelancers in America, John Scalzi. As always, that discussion will begin at noon Eastern time.

Bob Levey:

Thanks to everyone who joined the discussion.

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