Two hundred years ago today, after months of debate and compromise, the U.S. Constitution was signed in Philadelphia by representatives of the 13 states. The American people are now being treated to a dramatic display of that remarkable document in action.
Exercising the power that "We, the People" conferred on him in the Constitution, President Reagan nominated Judge Robert H. Bork to the Supreme Court. The Senate, exercising that same power, will decide whether to "consent" to his appointment. The primary consideration of the executive and legislative branches is how Bork's presence on the high court would affect the judiciary's role in government. What are Bork's views on the constitutional protections that the Supreme Court, through its interpretations, will extend or withhold from individuals and institutions?
The press is understandably most concerned with Bork's thinking on the First Amendment's guarantee of a free press. It is a measure of this complex jurist that he has shown himself, in his appellate court decisions, to be both a staunch defender of press freedom and a formidable threat to it.
This is not as contradictory as it may seem. Our associate Corky Johnson has studied landmark cases that Bork ruled and commented on, and a general pattern is discernible in his decisions: Against individuals offended by journalists, Bork has vigorously championed the press; against the government's attempts to put limits on press freedom, he has often come down on the side of the government. Bork's view is that the First Amendment's guarantee of free speech and press is not absolute when weighed against considerations of national security. His eminently pragmatic contention is that a government that can't protect itself from subversion won't be around very long to protect anyone's free speech.
His view on the contest between the press and its individual "victims" is also tinged with pragmatism. He expressed himself vividly in his opinion concurring in the dismissal of a libel suit brought against syndicated columnists Rowland Evans and Robert Novak by a professor who claimed their characterization of him as a Marxist had cost him a prestigious university appointment.
"A freshening stream of libel actions, which often seem as much designed to punish writers and publications as to recover damages for real injuries, may threaten the public and constitutional interest in free, and frequently rough, discussion," Bork wrote. "Those who step into areas of public dispute, who choose the pleasures and distractions of controversy, must be willing to bear criticism, disparagement and even wounding assessments."
The press could hardly have asked for a more ringing defense of its right to free and untrammeled commentary. On the basis of that decision alone, some journalists (and their libel lawyers) have hailed Bork as a justice who will help discourage the "freshening stream" of litigation that has bankrupted some newspapers and caused others to soften their more aggressive tendencies.