As a First Amendment attorney and former wire-service reporter who came of age in the Watergate era, I’ve always believed that the Fourth Estate has a special role to play in a functioning democracy. Dismantle the free press, and you pretty much dismantle democracy.
So I share the public outrage amid reports that the Department of Justice secretly seized the phone records of Associated Press offices in Washington, New York and Hartford as part of its escalating war on government leakers and whistle-blowers, and the reporters with whom they speak.
Lest there be any confusion: This is a big deal.
Reporters are different from the rest of us when it comes to constitutional protections because of the critical role that they play in informing the public about the inner workings of our government. It’s no accident that the founding fathers gave the press a special mention in the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press…”
In contrast to the partisan inquisitions that masquerade as congressional hearings, principled news outlets — like the Associated Press — shed light “Without Fear or Favor” as The New York Times motto reminds us. Wire-service reporters are a special breed unto themselves, working the front lines of any city, often feeding the mainstream news outlets, with too little credit and too few bylines, but often the best sources. Without a strong and independent Fourth Estate, the American people will only receive the information that the government wants them to hear.
No doubt President Obama and Attorney General Eric Holder are mindful of the comparisons rightly made between this fiasco and efforts by previous administrations to target civil rights leaders. You need only grab a copy of Anthony Lewis’ “Make No Law” to remind yourself of the critical role played by a free press in the civil rights movement — and why both the FBI and white southern officials wanted to silence the media. Then came the leak of the Pentagon Papers and threats by President Richard Nixon to criminally prosecute The New York Times, before Nixon himself was brought down by two enterprising young reporters at the Washington Post and a whistleblower by the name of “Deep Throat.”
Given this history, it’s no surprise that both President Obama and AG Holder tried to distance themselves from AP-gate. Holder has announced that he recused himself from the investigation, but he couldn’t have been too far out of the loop. He apparently knew enough about the investigation to pronounce that it was a “a very, very serious leak… among the top two or three serious leaks that I’ve ever seen.” Federal regulations also require the Attorney General to personally sign off before seizing cell phone records of media outlets.
Sadly, these denials and justifications ring hollow, given the Obama administration’s pattern of targeting the communications records of reporters and the media. As Freedom of the Press Foundation’s Trevor Timm points out:
“In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists one way or another.”
Indeed, targeting federal officials who talk to reporters increasingly seems to be the Obama administration’s standard operating procedure. According to a January Washington Post report:
“The FBI also looks at officials’ phone records — who called whom, when, for how long. Once they have evidence of contact between officials and a particular journalist, investigators can seek a warrant to examine private e-mail accounts and phone records, including text messages.”
Brrr… Do you feel that chill?
So what recourse do journalists — and the rest of us — have to challenge government spying? Absent changes to the law, not much.
After all, it was this administration that vociferously argued to the U.S. Supreme Court, in Clapper v. Amnesty International, that reporters, lawyers and human rights workers do not have the right — or in legal speak, ‘standing’ — to question in court the constitutionality of secret government monitoring of international phone and internet communications between reporters and their sources, lawyers and their clients, or human rights workers talking to human rights victims. Unfortunately, the Supreme Court went along with this dangerous logic and threw the case out before it could even address the constitutionality of the statute in question.
Something has gone terribly wrong when the government’s ability to watch its citizens outstrips the people’s ability to watch their government. Unless checked, AP-gate won’t be the last time the media is targeted as a way to control the information we, the American people, receive about our government.
Those of us who care about freedom of the press should demand that laws be updated so government officials are required to get more than a mere subpoena before going after the news media’s “personal papers and effects.”
Our democracy depends on it.