The First Amendment and the End of the World

Authors

  • Stewart Harris

DOI:

https://doi.org/10.5195/lawreview.2007.74

Abstract

This paper deals with a serious question that is largely unaddressed by the U.S. or international legal systems: how should society deal with inherently, catastrophically dangerous information—information that, in the wrong hands, could lead to the destruction of a city, a continent, or, conceivably, the entire planet? Such information includes, but is not limited to, blueprints for nuclear weapons, as well as specific formulae for chemical and biological weapons of mass destruction. The paper is not a critique of the existing statutes and regulations that various governments use to keep their secrets secret. Rather, it is a discussion of what to do when some such secrets are inevitably disclosed, or, more generally, how to deal with catastrophically dangerous information that is generated outside of governmental control. Addressing these issues is primarily a matter of policy, but policy with significant constitutional dimensions. Perhaps the most fundamental of those
dimensions is the question of whether a governmental restriction on receipt, dissemination, and even mere possession of information can be reconciled with the speech and press clauses of the First Amendment. Although existing authorities do not directly address the subject, what little authority there is suggests that reasonable restrictions upon the possession and dissemination of catastrophically dangerous information—even when that information is already within the public domain—can be implemented in a way that is consistent with the First Amendment. Given the growing urgency of the subject and the need for a comprehensive approach, I advocate a statutory solution in the United States that defines and limits access to catastrophically dangerous information, but which also limits governmental seizures and restrictions to only the most dangerous types of information, and which provides for a pre-seizure warrant requirement and expedited post-seizure judicial review. Given the global dimensions of the problem, I also advocate a corresponding international regime patterned upon the Nuclear Nonproliferation Treaty of 1968.

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Published

2007-04-26

How to Cite

Harris, Stewart. 2007. “The First Amendment and the End of the World”. University of Pittsburgh Law Review 68 (4). https://doi.org/10.5195/lawreview.2007.74.

Issue

Vol. 68 No. 4 (2007)

Section

Articles

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