become automatically downgraded at 12-year intervals until the lowest classification is reached, but shall not become automatically declassified. "(4) Group 4. Information or material which does not qualify for, or is not assigned to, one of the first three groups. Such information or material shall become automatically downgraded at three-years intervals until the lowest classification is reached, and shall be automatically declassified twelve years after date of issuance.

"To the fullest extent practicable, the classifying authority shall indicate on the information or material at the time of original classification if it can be downgraded or declassified at an earlier date, or if it can be downgraded or declassified after a specified event, or upon the removal of classified attachments or enclosures. The heads, or their designees, of departments and agencies in possession of defense information or material classified pursuant to this order, but not bearing markings for automatic downgrading or declassification, are hereby authorized to mark or designate for automatic downgrading or declassification such information or material in accordance with the rules or regulations established by the department or agency that originally classified such information or material."

"(e) Information or Material Transmitted by Electrical Means. The downgrading or declassification of classified information or material transmitted by electrical means shall be accomplished in accordance with the procedures described above unless specifically prohibited by the originating department or agency. Unclassified information or material which is transmitted in encrypted form shall be safeguarded and handled in accordance with the regulations of the originating department or agency."

"(g) Upgrading. If the recipient of unclassified information or material believes that it should be classified, or if the recipient of classified information or material believes that its classification is not sufficiently protective, it shall be safeguarded in accordance with the classification deemed appropriate and a request made to the reviewing official, who may classify the information or material or upgrade the classification after obtaining the consent of the appropriate classifying authority. The date of this action shall constitute a new date of origin insofar as the downgrading or declassification schedule (paragraph (a) above) is concerned."

"(h) Departments and Agencies Which Do Not Have Authority for Original Classification. The provisions of this section relating to the declassification of defense information or material shall apply to departments or agencies which do not, under the terms of this order, have authority for original classification of information or material, but which have formerly classified information or material pursuant to Executive Order No. 10290 of September 24, 1951."

"(i) Notification of Change in Classification. In all cases in which action is taken by the reviewing official to downgrade or declassify earlier than called for by the automatic downgrading-declassification stamp, the reviewing official shall promptly notify all addressees to whom the information or material was originally transmitted. Recipients of original information or material, upon receipt of notification of change in classification, shall notify addressees to whom they have transmitted the classified information or material."

2. Section 5 is amended

(A) By adding a new paragraph (a) thereto, as follows:

"(a) Downgrading-Declassification Markings. At the time of origination, all classified information or material shall be marked to indicate the downgrading-declassification schedule to be followed in accordance with paragraph (a) of section 4 of this order."

(B) By relettering the present paragraphs (a) through (i) as (b) through (j), respectively.

3. Section 6 is amended

(A) By deleting from the second sentence of the first paragraph the words "physical or mechanical."

(B) By deleting paragraphs (a) and (b) and by inserting in lieu thereof the following:

"(a) Storage of Top Secret Information and Material. As a minimum, Top Secret defense information and material shall be stored in a safe or safetype steel file container having a three-position dial-type combination lock,

and being of such weight, size, construction, or installation as to minimize the possibility of unauthorized access to, or the physical theft of, such information and material. The head of a department or agency may approve other storage facilities which afford equal protection, such as an alarmed area, a vault, a vault-type room, or an area under continuous surveillance. (b) Storage of Secret and Confidential Information and Material. As a minimum, Secret and Confidential defense information and material may be stored in a manner authorized for Top Secret information and material, or in steel file cabinets equipped with steel lockbar and a changeable three-combination dial-type padlock or in other storage facilities which afford equal protection and which are authorized by the head of the department or agency. "(c) Storage or Protection Equipment. Whenever new security storage equipment is procured, it should, to the maximum extent practicable, be of the type designated as security filing cabinets on the Federal Supply Schedule of the General Services Administration."

(C) By relettering the paragraphs (c) through (g) as (d) through (h), respectively.

4. Paragraphs (c) and (d) of section 8 are amended to read as follows: "(c) Transmitting Secret Information and Material. Secret information and material shall be transmitted within and between the forty-eight contiguous States and the District of Columbia, or wholly within Alaska, Hawaii, the Commonwealth of Puerto Rico, or a United States possession, by one of the means established for Top Secret information and material, by authorized courier, by United States registered mail, or by the use of protective services provided by commercial carriers, air or surface, under such conditions as may be prescribed by the head of the department or agency concerned. Secret information and material may be transmitted outside those areas by one of the means established for Top Secret information and material, by commanders or masters of vessels of United States registry, or by the United States registered mail through Army, Navy, Air Force, or United States civil postal facilities: provided, that the information or material does not at any time pass out of United States Government control and does not pass through a foreign postal system. For the purposes of this section registered mail in the custody of a transporting agency of the United States Post Office is considered within United States Government control unless the transporting agent is foreign controlled or operated. Secret information and material may, however, be transmitted between United States Government or Canadian Government installations, or both, in the forty-eight contiguous States, the District of Columbia, Alaska, and Canada by United States and Canadian registered mail with registered mail receipt. Secret information and material may also be transmitted over communications circuits in accordance with regulations promulgated for such purpose by the Secretary of Defense.

"(d) Transmitting Confidential Information and Material. Confidential information and material shall be transmitted within the forty-eight contiguous States and the District of Columbia, or wholly within Alaska, Hawaii, the Commonwealth of Puerto Rico, or a United States possession, by one of the means established for higher classifications, or by certified or first-class mail. Outside those areas Confidential information and material shall be transmitted in the same manner as authorized for higher classifications." 5. Section 13 is amended to read as follows:

"SEC. 13. 'Restricted Data,' Material Formerly Designated as 'Restricted Data, Communications Intelligence and Cryptography. (a) Nothing in this order shall supersede any requirements made by or under the Atomic Energy Act of August 30, 1954, as amended. Restricted Data,' and material formerly designated as 'Restricted Data,' shall be handled, protected, classified, downgraded, and declassified in conformity with the provisions of the Atomic Energy Act of 1954, as amended, and the regulations of the Atomic Energy Commission.

"(b) Nothing in this order shall prohibit any special requirements that the originating agency or other appropriate authority may impose as to communications intelligence, cryptography, and matters related thereto."

6. A new section 19 is added reading as follows:

"SEC. 19. Unauthorized Disclosure by Government Personnel. The head of each department and agency is directed to take prompt and stringent administrative action against any officer or employee of the United States, at any

level of employment, determined to have been knowingly responsible for any release or disclosure of classified defense information or material except in the manner authorized by this order, and where a violation of criminal statutes may be involved, to refer promptly to the Department of Justice any such case."

7. Sections 19 and 20 are renumbered as sections 20 and 21, respectively. JOHN F. KENNEDY.

[Reprinted by permission]

ON FOOLING THE PEOPLE, WHETHER SOME, MOST OR ALL OF THE TIME:
AN EXAMINATION OF THE PEOPLE'S RIGHT TO KNOW

(By W. Barnett Pearce)

This article argues that freedom of speech occurs only when the people are permitted BOTH to express themselves and to gain the fullest possible information about the issues. On this basis, government suppression of information is viewed as compromising freedom of speech. In addition to suggesting the relevancy of "the right to know" to the dialogue concerning freedom of speech, this paper serves as an introduction to the issue of information suppression by presenting a summary of the case for and the case against government control of information, and by specifying some factors which should be considered in discussions of the topic. The conclusion is addressed particularly to those who might use this material in appropriate classes.

This paper originated as a project in the seminar in "Freedom and Responsibility in Speech" under the direction of Paul Boase at Ohio University, 1968. Pedagogical adaptations reflect use of the material in the "Communications and Society" course at the University of North Dakota.

Dr. Pearce (Ph.D., Ohio University, 1969) is assistant professor of Speech and Journalism, at the University of North Dakota.

This manuscript will be published by the Speech Communication Association in the Freedom of Specch Yearbook: 1970, Thomas Tedford, editor. Quotations and citations should refer to that book. Reproduction of this material must be by permission of the author.

Whatever their purposes, and Levy' argued convincingly that they surely did not anticipate the social order which it produced, the writers of the first amendment structured a vital part of our society by guaranteeing that the freedom of speech, press, assembly and petition would not be denied by Federal legislation. The most direct effect of these provisions was to enlarge the bounds of permissable behavior: citizens may legitimately express a wide latitude of opinions using a great range of communicative techniques. Any restriction of either manner of expression or content of messages is suspect on the criterion of constitutionality. But the counterpart of freedom of speech is the people's right of access to information. Mr. Justice Douglas interpreted the right to know as the major thrust of the first amendment," and Mr. Justice Frankfurter, in this context, defined democratic government as "the government which accepts in the fullest sense the responsibility to explain itself." 3

The people's right to know is linked to freedom of speech by two basic democratic principles. First, the belief that truth emerges best from a free "marketplace" of ideas in which all viewpoints are presented presumes freedom for advocates of all persuasions to inform themselves and to speak. Second, the practice of allowing the people to change the personnel of the government at frequent intervals is defensible only if they have adequate information to make intelligent choices among candidates representing alternative philosophies and platforms. The electorate can be in effect disenfran

1 Leonard W. Levy. Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper and Ron. 1963). pp. 3

p. S.

William O. Douglas, Freedom of the Mind (Garden City, N. Y.: Doubleday, 1964),

3 Zechariah Chafee, Jr.. Government and Mass Communication (Chicago: University of Chicago Press, two volumes, 1947), p. 752.

chised by suppressing a particular viewpoint or by withholding specific items of information. Thus freedom of speech is conceptualized in terms of two foci: the right of individuals to express themselves and their right to have information upon which to base their opinions.

The limits of individual freedom of expression and the areas of legitimate control have been explored recently by O'Neil' and Haiman. Recent events, including the Vice President's criticisms of "gaggles" of commentators who question Administration policy, charges of police suppression of the proponents of the Black Panther Party, groups who shouted down Presidential candidates during the 1968 election, street battles between demonstrators and antidemonstrators, and unprecedented use of nudity and pornography in the arts, verify the relevancy and importance of these analyses. But even if people were allowed to express themselves about any topic in any manner that they chose, without the right to know they would still not have freedom of speech.

There is a sense in which speech is not free, even if it is not legally restricted, if vital items of information are concealed. For example, the people were not free to discuss the Manhatten project which developed the atomic bomb because great effort was expended to insure that they did not know of the project. And the issue is certainly not exclusively historical. The so-called "credibility gap" designates lack of confidence that the government is explaining itself completely, and numerous instances of governmental secrecy continue to alarm many citizens, particularly with reference to military commitments.

This paper is an analysis of one aspect of the freedom of speech: the people's right to know. The thesis is that freedom of speech is directly limited by any group which withholds information relevant to topics being discussed or which would be discussed if known about. Reflecting the author's judgment that government is both the agency which withholds most information and is the agency which has the greatest responsibility to explain its actions to the people, the topic will be further limited to government suppression of information.

The purpose of this paper is academic, not polemic. Rather than assume a position and marshall supportive arguments, this paper presents the case for and against government control of information. This procedure seems advisable for several reasons. First, understanding both positions should precede a commitment to either. Second, obtaining a summary of both cases has classroom pedagogical advantages, discussed later in this paper. Third. the issues are complex, and this procedure seems to impose less distortion than would a polemic.

GOVERNMENT CONTROL OF INFORMATION

A "restless contradiction" exists between the constitution's guarantee of freedom of speech and its authorizing the government to withhold information. The people's right to know is counterbalanced by "the right of the President in the absence of express provisions to the contrary, to decide what records of the executive department may be withheld and what disclosed.""

In recent years, this "executive privilege" was dramatically extended. Both Truman and Eisenhower gave Executive Orders empowering Federal employees other than the President to classify information. An estimated one million people were authorized to wield the Top Secret stamp in the Eisenhower administration. Under these provisions, the government has (1) suppressed information about its activities; (2) released false and deliberately misleading information; and (3) created a system perpetuating these practices.

Examples of information control are readily available. President Eisenhower admitted that "in the diplomatic field it was routine practice to deny responsibility for an embarrassing occurrence when there is even one percent

Robert M. O'Neil. Free Speech (New York: Bobbs-Merrill, 1966). Franklyn Haiman. Freedom of Speech (New York: Random House. 1966). James Russell Wiggins, Freedom of Secrecy (New York: Oxford U. Press, 1964), 7 William J. Lederer, 4 Nation of Sheep (Greenwich, Conn.: Fawcett Publications, 1961), p. 88.

p. 67.

chance of being believed." Accordingly, he denied any knowledge of spy-flights. over the Soviet Union until the Russians produced a downed U-2 plane and its pilot. Secretary John Foster Dulles often tested public opinion-and confused the public-by releasing contradictory reports attributed to an unnamed source described only as a "high government official." He once told newsmen not to quote him but to report that the U.S. would defend the islands of Quemoy and Matsu in event of Chinese attack. After the public response was noted, Dulles authorized a similar "nonattributed" story denying that the islands would be defended." President Kennedy suppressed information about the presence of missiles in Cuba until he had initiated his "quarantine" 10--and deliberately lied to the people in the process.' President Johnson would not allow foreign news films showing civilian casualties due to U.S. bombing in North Vietnam to be shown in this country. Rather, the American public was told that civilian casualties were prevented by highly effective precision-bombing techniques.1 Nelson Rockefeller accurately observed that "we live in an age when the word of a political leader seems to invite instant and general suspicion." 13 And well it might: Rockefeller's unequivocal reiteration of non-candidacy, prefaced by an appeal to be spared this sort of skepticism, was publicly repudiated a few weeks later.

11

Unhappily, not every case of information control is motivated by anything resembling the national interest. Partisan politics seem to be a sufficient cause of information control. When the press correctly learned that a highranking official (actually Senate Majority Leader Mike Mansfield) privately told President Johnson that he strongly disagreed with his conduct of the Vietnamese war although he would not attack him publicly, Johnson avoided the embarrassment of admitting formidible opposition within his own party by identifying newly-elected House Minority Leader Gerald Ford as the silent opponent. The fact of Mansfield's opposition and Democratic disunity was buried in partisan bickering."

15

Although there is little disagreement about the fact of government suppression of information, evaluations of the practice vary widely. For example, Wiggins suggested that the issue is that of secrecy or freedom, for the two are incompatible. If continued, he argued, deceptive handling of information will change the very nature of our government.18 On the other hand, former Assistant Secretary of Defense Sylvester publicly admitted that he had lied in government pronouncements and defended the practice as being necessary for national security and, because of that, morally right." It is instructive to consider the case made for and against information control.

THE CASE AGAINST GOVERNMENT CONTROL OF INFORMATION

Those opposed to government control of information argue that it threatens freedom and good government. Adequate information is considered a prerequisite of freedom. Perry observed that "whoever determines what alternatives shall be known to a man controls what the man shall choose from. He is deprived of freedom in proportion as he is denied access to any ideas, or is confined to any range of ideas short of the totality of relevant possibilities." 18 There is an obvious validity to this argument. If government suppresses information about a non-military means of coping with an international problem and then asks citizens to support military action, their freedom of self-determination has been compromised to the extent that they

Alden H. Sypher, "You Can't Fool All of the People Even Some of the Time," Nation's Business, 54 (February, 1966), p. 32. Lederer, op. cit., p. 97.

19 Pierre Salinger, With Kennedy (Garden City, NY.: Doubleday, 1966), pp. 286 287. 11 Arthur Sylvester, "The Government Has the Right to Lie," Saturday Evening Post, 240 (November 18, 1967), p. 10.

12 'Snow Job," Nation, 203 (July 25, 1966), p. 66.

13 U.S. News and World Report, May 13, 1968, p. 36.

14 Rowland Evans and Robert Novak, Lyndon B. Johnson: The Exercise of Power (New York: The New American Library, 1966), pp. 552-553.

15 For further examples, see Clark Mollenhoff, Washington Cover-up (Garden City. N.Y. Doubleday, 1962).

16 Wiggins, op. cit., p. xi.

17 Sylvester, loc. cit.

18 Felix E. Oppenheim, Dimensions of Freedom (New York: St. Martin's Press, 1961), p. 83.