Complaints about prior restraint involve a fundamental right. It’s the right the Founding Fathers listed first when they wrote the Bill of Rights, hoping to protect the individual from the power of the state.
Throughout the history of the United States, courts have generally held that the First Amendment protects citizens against prior restraint. That means that, while the government can take action against a citizen for publishing an opinion, a story or a photograph, the government generally is prohibited from reviewing or censoring the material before it is published.
Your opinions and views may get you in trouble and the government may well come down on you — after you publish them. But the government doesn’t have the right to keep you from expressing those views. And it doesn’t have the right to check your stories, photographs and opinions to see whether someone in government thinks they’re OK.
On Monday, Texas City police detained Kevin M. Cox, a Daily News photographer who was taking pictures of an oil leak on Marathon Oil Co. property. Cox was on public property. He was standing near 14th Street at Eighth Avenue.
He was told police wanted to see the photos he’d taken. He also was told he was not free to leave the area. He spent about 45 minutes in limbo while an editor contacted the police chief.
Police officers asked to see the photos. Cox declined, pointing out that the images belonged to The Daily News and not to him.
The Daily News declined on principle. If there were compelling reasons for the pictures to undergo legal review, police could convince a judge to sign a warrant.
The Daily News published a photo because it showed what a normal citizen could expect to see if that person was interested in an oil spill in his neighborhood.
It’s hard to imagine anyone arguing for a warrant with a straight face. If a terrorist organization were really interested in attacking a petrochemical plant, it would have someone inside the fence. At the very least, it would have someone driving the fence line. It wouldn’t have someone stationed at news stands, looking at newspaper photographs.
Police and a spokesman for the FBI said officers wanted to see the images because of concerns about national security.
When the newspaper asked which law gives anyone in government the right to see photographs before they are published, there was no answer. Instead, the newspaper was told that it should be concerned about national security.
If we or other citizens give up the first right on that list of rights designed to protect the individual from the government, haven’t we talked ourselves into giving up them all? There’s no security in a nation like that. None.
