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Pressing freedom.

"Prudence," wrote Judge Leonard Sand of the U.S. District Court for Southern New York, "dictates that a final determination of the important constitutional issues at stake be left for another day when the controversy is more sharply focused." With those words he dismissed the complaint of The Nation, Harper's, In These Times, Pacific News Service, The Guardian, The Progressive, Mother Jones, L.A. Weekly, The Village Voice, The Texas Observer, Pacifica Radio News and various individuals who collectively challenged Pentagon censorship of gulf war coverage.

Although Judge Sand refused to accept the argument of The Nation et al. that Defense Department manipulation and control of the news media violated the First and Fifth Amendments, he did so, he said, because the issues raised were "not sufficiently in focus." The war, after all, is over, the Pentagon guidelines are inoperative and no alternative guidelines were on the table. "In a case of such moment, involving significant and novel constitutional doctrines:' Judge Sand wrote, "the Court must have the benefit of a well-focused controversy."

But the Court was not unmindful that this was the third time, after Grenada and Panama, that the Pentagon has gotten away with excluding the kind of press coverage appropriate to an open society, even (especially) in time of war, when lives are at stake. The decision puts the Pentagon on notice that its next incursion into the people's right to know may not survive judicial scrutiny.

To the Defense Department's contention that the plaintiffs had no standing to sue, Judge Sand said that the harms alleged were "distinct and palpable " and thus sufficient to grant such standing. Second, he found "unpersuasive DOD's primary argument that the political question doctrine [that the judiciary should not get enmeshed in "political thickets"] bars [the] court from adjudicating any claims that involve the United States military." The Pentagon is not above the law, even (especially) in time of war. And finally, his opinion implies that if future plaintiffs move with dispatch in a case "sufficiently concrete and focused," a court might well bar the government from repeating its crimes against free speech.

Judge Sand's ruling was not a victory for the press. But to the extent that his reasoning and findings constitute legal precedent they bode ill for government censors in future wars.

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Title Annotation:Pentagon censorship of Persian Gulf War coverage
Publication:The Nation
Article Type:editorial
Date:May 6, 1991
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