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4.2.12
WC: 191694

“security”—or “corporate security” or “university security” or the security of any
institution—should be subject to rigorous challenge, in an effort to separate the contrived from
the authentic. But this will not eliminate all conflict. There will be some cases of real and
intractable conflict between security and freedom. Our Constitution purports to resolve doubts in
favor of freedom, but there are cases where even that presumption will not resolve the problem:
where the authentic claims of national security will seem to outweigh the powerful presumption in
favor of free expression.

In those cases we need to develop adequate mechanisms for resolving the dispute. Resolution
cannot be left entirely in the hands of those responsible for security, such as the executive or the
military. Our experience in delegating decision-making authority to these institutions in times of
crisis is discouraging.

It has been indeed fortunate for the survival of our liberties that there have always been some
Americans—often only a small group and sometimes not those directly affected—willing to
challenge governmental high-handedness, even during periods of crisis. Under our constitutional
system, it takes only a single person challenging the government to create a case or controversy
suitable for judicial resolution.

This is not to suggest that justice should remain blind to the existence of a real emergency
endangering the survival of the nation. As Justice Arthur Goldberg once wrote: “While the
Constitution protects against the invasion of individual rights, it is not a suicide pact.” But it is
precisely during times of crisis—when the balance between momentary expediency and enduring
safeguards often goes askew—that courts can perform their most critical function: to preserve or
restore a sense of perspective.

In the eternal struggle between liberty and security we have come to expect the executive and
legislative branches to champion the latter. The judiciary—with its lifetime tenure, its tradition of
independence, and its unique stewardship over our irrepealable rights—is the institution most able
to resist the passing fears and passions of a dangerous moment.

But liberty is not a commodity that can be obtained once and for all, and then passively held on to.
The battle for civil liberties, as Roger Baldwin, the late founder of the ACLU, liked to say, “never
stays won.” (A variation on the Biblical admonition that justice must be actively pursued, because
it too “never stays won.”) The struggle must be endured by every new generation and in each
new crisis. What Thomas Paine taught us on the eve of our own Revolution remains true today:
“Those who expect to reap the blessings of freedom must. . . undergo the fatigue of supporting
it.”

The stakes on both sides are much higher when the government seeks to censor dangerous
“leaks” than when it seeks to censor obscenity or other merely offensive or disturbing speech.
The danger of publication is greater and the danger of repression is also greater. There are
serious risks in not censoring, and there are serious risks in censoring. Striking the proper
constitutional balance between these risks is a daunting challenge that every democracy must
confront. Unfortunately it is a challenge that too few democracies—including our own—have
confronted wisely and correctly.41

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