The Nation magazine is of stern left-wing views and is brimful of disdain for the profit motives of capitalist civilization. Its editors no doubt feel deep pain because they must (this sad world enforces moral compromise) put a price on their product rather than give it away at newsstands, to each according to need.
But being an uncompromising critic of bourgeois values, The Nation never bends its knee to the totem of private property. So it was with the pleasure that comes when ideological and commercial considerations converge, that The Nation expropriated Gerald Ford's memoirs, for profit and, of course, for terribly high principle. The result was litigation and now a Supreme Court ruling more entertaining than historic, but entertaining because it illustrates the American left's knack for mashing its thumb with its own hammer.
In 1979 Time magazine was poised to publish a 7,500-word extract from Ford's forthcoming memoirs. Time had already paid $12,500 and was to pay another $12,500 upon publication. But shortly before Time's publication date, an undisclosed source provided The Nation with a manuscript of the memoirs.
The Nation rushed into print a 2,250-word article based on, and quoting 300 words from, the portion of the memoirs Time had especially wanted, dealing with Ford's pardon of Richard Nixon. Exclusivity having been lost, Time cancelled publication plans and the second payment. Harper & Row, Ford's publisher and holder of the copyright, sued The Nation for copyright infringement.
A district court held for Harper & Row, but an appeals court reversed. It held that authors can copyright their "expression" but not facts and ideas, least of all "politically significant" facts and ideas such as those The Nation reported as news. The appeals court said copyright law should not "impede the harvest of knowledge" or "kill the activities of the press."
But the Supreme Court, divided 6-3, has reversed the appeals court's reversal, holding that to treat as acceptable what The Nation did would defeat the intent of copyright laws. That intent is to promote knowledge by guaranteeing a fair return to those who augment knowledge. The interests of book publishers and authors have here prevailed over the interests of those who publish journalism.
The Nation's editor, cloaking his professional and commercial interests in the cloth of public-spiritedness, and dressing up his defeat as a blow to the public weal, says the court's decision allows public officials "to withhold public information, the news, for private profit," and this "undermines the public's right to know."
Note how in the hands of an editor with magazines to sell, the First Amendment becomes, in the name of freedom, an instrument of coercion. According to The Nation's editor, the First Amendment licenses him to determine that a person -- at least a public person -- must speak, and when.
Writing for the court's majority, Justice Sandra Day O'Connor notes that the fundamental purpose of the First Amendment is to prevent improper restrictions on voluntary public expression of ideas. It protects the individual's right to speak when others want him to be quiet. But there is a concomitant freedom to refrain from expressing oneself until one wants to do so. The Nation denied that freedom to Ford, at a financial cost to him.
Justice William Brennan, joined by Justices Byron White and Thurgood Marshall, dissented, arguing that the court's construction of copyright law will "stifle the broad dissemination of ideas and information that copyright is intended to nurture." The Nation's lawyer, not to be outdone in wringing apocalyptic portent from this little case, says the ruling "is basically a denial to the public of the most important information about their government unless and until it is sold to them by a former public official."
Actually, the decision was of narrow scope, turning, in part, on The Nation's use of verbatim quotations, which were not essential to The Nation's reporting of facts. But the decision constitutes a modest enhancement of a property right and a corresponding modest restriction on the right of news organizations to publish newsworthy material as quickly as they get it. Friends of property rights should send thank-you notes to The Nation.
For nearly two decades, life has been like that for the American left. The left's principal accomplishment is the ascendancy, political and intellectual, of the right, which grew in reaction to the excesses of the left.