CAUGHT UP IN a frenzy, the House took a
nasty swipe at the First Amendment the other day. A bill was before it intended to cope with the ugly practice of revealing the names of secret agents in order to spoil American foreign intelligence activities. Chairman Edward Boland's (D-Mass.) bill was not perfect. It would have made it a felony to publish an agent's name if the intent was to impair American intelligence. This did not sit well, in our view, with the First Amendment's guarantee of free speech. But the bill had been approved 17 to 1 in the House Intelligence Committee, it was unquestionably superior to the Senate version, and passage seemed assured.
Let credit be given where it's due--to the committee's lone holdout, Rep. John M. Ashbrook (R- Ohio). Working against a complacent opposition, Mr. Ashbrook circulated a "Dear Colleague" appeal and a copy of a new letter from President Reagan expressing support for the Senate bill. "We should not back down simply because some law scholar from Chicago says it is unconstitutional," Mr. Ashbrook declared. "We should reassert ourselves." In all, 38 Republicans voted against the bill; although none spoke for it, 74 Democrats voted for it. The Ashbrook amendment carried, 226-181.
Where the House bill requires proof of someone's specific intent to damage American intelligence, this amendment (and the Senate bill) requires proof of "reason to believe" damage would be done. The difference is vast. Under "reason to believe," a journalist or scholar or someone else might be found guilty even without a finding that the defendant intended harm to intelligence activities or that he figured harm would come; it might be enough that he should have known. The defendant could get off only if he could rebut the prosecution's contention that his disclosure was part of a "pattern of activities." But would, say, two newspaper stories be considered a "pattern?"
It is terrible that a handful of renegades have made a cause of blowing agents' cover. It would also be terrible if Congress blew the First Amendment while pursuing them. A bill on the lines of the Ashbrook amendment is to be reported out of the Senate Judiciary Committee on Oct. 6. That's where the fight to defeat it will have to take place.