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Law Quadrangle (formerly Law Quad Notes)

Abstract

In recent months, public discussion has begun to focus on a variety of measures now being implemented, or being proposed, by the present administration, all of which are intended, and designed, to prevent public disclosure of government information. Of principal concern to many have been the administration's efforts to restrict the operation of the Freedom of Information Act, to increase the amount of material which will receive the designation of "classified," and to require that all government officials with "authorized access" to "Sensitive Compartmented Information (S.C.1.)" will sign an agreement that they will forever thereafter- during the whole of their lifetimes- submit their writings to a system now referred to as "prepublication review." These actions (and others of like intention and effect), many have argued, pose a serious risk of inhibiting the free exchange of views within the country and, for that reason, raise serious First Amendment problems. Claims that this or that policy violates the principle of freedom of speech and press are now being heard with greater and greater frequency.

In this statement, I address only the First Amendment implications of one of these information policies- the prepublication review agreements now being circulated among various departments and agencies of the federal government. Does this particular policy, instituted by a presidential directive in March, 1983, violate the constitutional principle of freedom of speech and press? The answer I give here is that it does.

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