[jecIIny]

That is a fascinating article. Thanks for posting it. The kind of reply it deserves would be outside the scope of a post on FR so I will have to confine myself to a few very basic points.

1. The Espionage act of 1917 is still on the books. But a mountain of jurisprudence both predating and postdating the Pentagon Papers case in the early 70's has left its constitutional viability very much in doubt. Also Congress has passed other espionage laws since then which would at least on the surface appear to have rendered the 1917 version effectively nullified.

2. In those days, severance (a now common practice) was not done with legislation. This was in an age when the courts very rarely interfered with federal legislation. Consequently if any part of the act were declared constitutionally null it would invalidate the entire act. It is almost inconceivable that the Espionage Act in its entirety could withstand judicial scrutiny.

3. Politically it would be extremely divisive to try and bring the Times up on charges. And I am not even talking about the Democrats. That kind of move would likely split the Republican party and the conservative movement. The simple truth is that a very sizable percentage of American conservatives are political and even social libertarians. They would rebel against any attempt to revive that now moribund law.

4. It is likely that any effort to revive the law would bring out very ugly facts about the way the Wilson (a Democratic) administration abused its powers and became something very close to an authoritarian regime in this country. There would almost certainly be a discussion over the sister legislation of the Espionage Act, the Sedition Act. That could make an ugly situation even worse.

In conclusion, the article is fascinating as an intellectual and hypothetical discussion on the possibility of reviving an arcane law. But as a matter of practical reality, it is not happening. The Espionage Act is a dead letter.

[Anti-Bubba182]

I think #3 is the dominant point of those you raise, but the act itself might be found Unconsitutional in part as you say in #2.

The administration won't do a lot more than complain in any case.

[conservatism_IS_compassion]

My reading of the unexerped complete article would scarcely give comfort to a Times reporter or executive.

IMHO the fundamental problem with our First Amendment jurisprudence is the extent to which journalism has succeeded, by calling itself "the press" (as if book publishing were not "the press" and as if government-licensed broadcasters who couldn't exist without the censorship of competion were "the press") in establishing itself as being judicially regarded as seperate from "the people."

Thus, Congress can pass, the president can sign, and the supreme court can ratify McCain-Feingold - which explicitly grants establishment journalism superior rights above those of people who have not yet exercised their constitutional right to start a newspaper. It is nothing but arrogance, and devoutly do we hope that Justices Roberts and Alito constitute a 2-0 vote rejecting that concept and overturning the 5-4 precedent in which their predecessors split 1-1 to uphold McCain-Feingold.