OBAMA'S DOJ SHREDS THE FIRST AMENDMENT
On the pretext of discovering the source of leaks from within the Obama Administration and the content of information leaked, the Department of Justice authorized what may well be the most widespread clandestine intelligence sweep of the national media in recorded history. At the tip of this iceberg, DOJ obtained two months of phone records from Associated Press journalists and obtained personal emails and phone records of Fox News journalist James Rosen and even the phone records of Rosen’s parents. Likely DOJ surveillance and monitoring of national journalists and media organizations extends beyond the reported incidents to reach more media and more journalists. The actions reveal not only a gross disregard, but a contempt for, freedoms protected by the First Amendment.
The actions admitted by the Administration thus far pose a direct threat to the core checking value of the First Amendment. When government employees leak secret information to journalists, the crime lies in the employee’s act of divulging those secrets. There is no crime in a journalist’s publication of information volitionally given him or her by a government employee. Indeed, the publication of information deemed secret by the government is fully protected by the First Amendment. The publication of state secrets, even ones obtained by theft, cannot be stopped unless it can be shown that the publication itself directly imperils the lives of individuals (as when the publication exposes the names of CIA operatives and their secret missions). A journalist who steals state secrets can be prosecuted for that act, and a government employee who divulges state secrets can also be prosecuted for that act, but nothing short of immediate peril to lives can stop the presses and, even then, the halt to publication must be severely limited in scope and duration.
It is not enough that the secrets, like the Pentagon papers concerning America’s prosecution of the war in Vietnam, reveal failed national policies or embarrass political leaders. Rather, the checking value inherent in the First Amendment’s bar against government abridgement of speech and press is so powerful a restraint on government that it denies interference with the free publication of information and ideas critical of government men and measures in all but the most grave and compelling circumstances.
When government assumes the extra-constitutional power to discover investigative journalists’ confidential sources and monitor those journalists interactions with those sources, it creates a major disincentive for discovery of truth, impairing those journalists ability to ferret out state secrets which may threaten the liberties of the people, question government actors and their measures without fear of retribution, and supply the public with the information it must have to exercise the franchise effectively to overthrow acts of corruption and abuse of power. The Founding Fathers well understood the indispensable checking value of the First Amendment. The proponents of American independence were greatly influenced by radical Whig ideology and, in particular, by the popular writings of Thomas Gordon and John Trenchard who wrote under the pseudonym “Cato.”
Gordon and Trenchard wrote over 100 essays in favor of civil and religious liberties in The London Journal from 1720 to 1723. Those essays were collected and republished as “Cato’s Letters.” Cato’s Letters went through six editions and were popularly excerpted and republished from Boston to Savannah as protests to acts of usurpation in the colonies. The free speech and press philosophy expressed in Cato’s Letters mirrored well the Founding Fathers understanding of the freedoms, which understanding gave rise to the “no law” language of the First Amendment. Among Cato’s essays most revered in the colonies were those on freedom of speech and press. Gordon and Trenchard wrote, “to do public mischief, without hearing of it, is only the prerogative and felicity of tyranny,” and contended that “[a] free people will be showing they are so, by their freedom of speech.” In particular, they advocated a broad freedom to publish all that a journalist could acquire lawfully from government (such as state secrets given voluntarily by a public employee, even if the employee violated the law by so doing). Gordon and Trenchard explained that it “ought to be the ambition, of all honest magistrates, to have their deeds openly examined, and publicly scanned” and that this would reveal when those who hold the public trust “are honest” and likewise would reveal when those who hold the public trust are “knavish or pernicious.” Such revelations in a democracy have a salutary and essential effect on the franchise whereby through their votes the electorate may remove those who act corruptly or abuse power.
As American constitutional scholars Vincent Blasi and Alexander Meiklejohn have well explained, this checking value (whereby the press exposes and thereby places an independent criticism on corruption and abuse of power) was understood by the founding generation to be an essential right protected from government by the First Amendment. In CBS v. Democratic National Committee, 412 U.S. 94, 160-61 (1973), Justice Douglas, writing in concurrence, expressed this philosophical underpinning of the First Amendment when he wrote: “[O]ne hard and fast principle which [the First Amendment] announces is that Government shall keep its hands off the press. That principle has served us through days of calm and eras of strife and I would abide by it until a new First Amendment is adopted.”
If the current invasions of press liberty go without judicial rebuke, they will cast a pall of censorship over the national media for years to come. Journalists will rightfully suspect that their communications with government actors are being scrutinized such that confidential sources may not remain confidential. Sources will fear the same invasion of their communications and will claim up. That will produce a pervasive chilling effect on the willingness of whistleblowers to reveal abuse of power and corruption in government while at the same time it will intimidate journalists into avoiding publication of information that may be, for all we know, essential for the exposure of corruption and abuse of power.
Only the naïve and the totalitarian among us harbor less than extreme fear at the prospect of the media losing its aggressive ability to expose and challenge the workings of government. Loss of that press freedom spells the end of liberty generally because government may then proceed with all manner of abuses without fear of having to answer to the electorate. Corruption and abuse of power will proliferate and destroy all vestiges of liberty and truth. In short, another stake in the heart of individual sovereignty would then be driven, forever forfeiting a foundational liberty upon which we rely.
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It is not enough that the Obama Administration’s Department of Justice be exposed for these abuses, much more is required to safeguard liberty. Those responsible should be removed from office and, if the evidence points to the President’s involvement, he should be impeached. Journalists and media organizations that have been victimized by the surveillance should now sue the federal government seeking a declaratory judgment that the acts taken violate the First Amendment and an injunction forbidding the federal government from using power to engage in the same and similar acts that reveal confidential sources and invade privacy. Moreover, legislation should be passed to forbid use of federal warrants to obtain journalists’ phone records and emails and stiff criminal penalties should be enacted applicable to those in government who violate the First Amendment rights of journalists and media organizations. Except in cases of imminent risk of harm to secret military or intelligence operatives, when even the writ of habeas corpus could be suspended by Act of Congress, there is no basis for depriving the media of press freedom and, even then, the measure should only occur following issuance of a temporary injunction by a federal court with the injunction limited to the shortest period necessary to avoid the harm. In all other instances, there is no justification for curtailing a freedom indispensable to liberty in general and to democracy in particular.
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