It is difficult to say whether Judge Robert Bork is friend or foe of free speech and free press. Our associate Corky Johnson has made an extensive study of Bork's public speeches, law journal articles and judicial opinions, and it's clear from this evidence that Bork would be a mixed blessing (or a curse, if you will) for First Amendment pleaders before the Supreme Court.
The most serious charge against Bork's First Amendment views stems from an article he wrote in the Indiana Law Journal in 1971, in which he appeared to limit the right of free speech to political discourse only. Wrote Bork: ''The entire structure of the Constitution creates a representative democracy, a form of government that would be meaningless without freedom to discuss government and its policies. Freedom for political speech could and should be inferred even if there was no First Amendment.''
When Jamie Kalven, writing in The Nation, interpreted Bork's statement to mean that only political speech deserved constitutional protection, Bork responded that he believes that moral and scientific debate is also guaranteed freedom of speech.
To judge by a lecture he gave on the First Amendment at the University of Michigan in 1978, Bork has a test for the right of free speech that others have not detected in the Constitution: protected free speech must be related to the democratic process, not be frivolous expression or subversive propaganda.
''There is no occasion,'' he said, ''to throw constitutional protection around forms of expression that do not directly feed the democratic process.''
If serious ideas are expressed in obscene terms or without moral judgment, they are not entitled to First Amendment protection, Bork argued, saying: ''The notion that expression must be protected if, in addition to pornography or obscenity, it contains an idea is equally unsupportable.''
Bork also drew the line on subversive discourse, challenging the narrow exclusions laid down by Justices Oliver Wendell Holmes and Louis Brandeis that society can legitimately protect itself only from speech that incites the prospect of imminent violence. (In a famous opinion, Holmes would have denied First Amendment protection to someone falsely crying ''Fire!'' in a crowded theater.)
In his lecture, Bork took issue with Holmes' broad view that expressions which advocate antidemocratic systems of government -- even when persuasive -- must be permitted. There is, said Bork, a ''terrifying frivolity" in Holmes' statements. A government that permits speeches that might recruit persons for ''underground activity, espionage and terrorist activity may not have a very high chance for survival,'' he said.
Bork seems to frown on the special status that the press has claimed for itself under the Constitution. He contends that the press has achieved a position that others don't enjoy.
For example, in his Michigan lecture, Bork told about a secret spying operation that had to be dropped after a newspaper reported that a U.S. submarine could tap into an undersea Soviet military communications cable. ''Had an ordinary citizen communicated that information to the Soviets, he would have been subject to severe penalties,'' Bork said.
Bork has repeatedly stated his belief that the Constitution confers no special rights on the press. ''It is impossible to read the press clause of the First Amendment as giving greater freedom than the speech clause gives,'' he once said. ''This means that the press should never gain rights superior to those of other citizens under the First Amendment.''
And Bork has made no secret of his view that the press has unreasonably claimed special privileges despite being pampered by the Supreme Court -- even during Chief Justice Warren Burger's tenure.
''Not a week goes by without thunderings from the journalistic corps that their freedoms are under assault,'' Bork said in his 1978 Michigan lecture. ''Articles appear at regular intervals with titles like 'The Judicial War on the Press' or 'Judges on the Rampage.' This is somewhat curious, since it seems plain that the press has done quite well before the Burger Court.'' Bork seemed to argue that the press has achieved freedoms through court decisions that are beyond any future Supreme Court's power to rescind.
Footnote: Judge Bork's official opinions will be reviewed in a future column.