President Barack Obama delivers remarks on the economy during an event at the University of Nevada, Las Vegas in Las Vegas, Friday, July 9, 2010. (AP Photo/Pablo Martinez Monsivais)
When Democrats nominated Barack Obama and Joseph Biden in 2008, there was relief that—after eight years of Bush/Cheney abuses—a major party was running, for the first time in our history, a pair of constitutional law instructors for president and vice president. With the Obama/Biden victory, many assumed that surely the new administration would respect the First Amendment, including the essential democratic role of a free press.
Not so. Bush and Cheney set a bad example, but Obama and Biden have compounded the damage. Truth-telling has suffered an all-out assault—sometimes literally, as in the case of Pfc. Bradley Manning, who has been detained in appalling conditions and now faces extreme charges that should be dropped.
The current administration knows better, but it has not done better. During Obama’s 2008 campaign, he accurately called whistleblowers “the best source of information about waste, fraud and abuse in government” and said that their “acts of courage and patriotism…should be encouraged rather than stifled.” Yet his administration has invoked the Espionage Act a record six times since 2009—twice as many as in the previous ninety years.
Americans understand that there are times when law enforcement agencies must strike a balance between First Amendment guarantees and national-security needs. But when the Justice Department secretly obtained two months’ worth of phone records of Associated Press reporters in at least four bureaus as part of an attempt to track a leak, that was overreach on a dramatic scale. Even more disturbing was the department’s investigation of the reporting activities of Fox News’s chief Washington correspondent as a potential crime—which it described as “solicitation” of leaks. This raises the specter of criminalizing one of the basic tasks of newsgathering: encouraging people in the know to answer questions about important issues. In seeking a warrant to review James Rosen’s private e-mails, the department called the reporter “an aider and abettor and/or co-conspirator” in the leaking of classified materials. “Criminalizing or threatening to criminalize the news-gathering process is a direct assault on the First Amendment and press freedom,” says Trevor Timm, executive director of the Freedom of the Press Foundation, who points out that talk of “conspiracy to commit espionage” is dangerous for reporters.
It’s even more dangerous for democracy. Freedom of the press was protected in the First Amendment because the founders understood that democracy is impossible without journalism. “A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both,” warned James Madison, who added that “a people who mean to be their own Governors must arm themselves with the power which knowledge gives.”
Practically, this means reporters must be able to engage in candid conversations with government officials. Associated Press president Gary Pruitt says that the reports of Justice Department crackdowns have made sources more reluctant to talk to reporters. If the pattern continues, the Washington press corps, already too prone to act as stenographers to power, will rely even more on official sources and official stories.
This is an urgent concern. President Obama and Attorney General Eric Holder claim to respect press freedom, yet they make “no apologies” for the aggressive pursuit of leaks. They must reverse course, and Congress has to prod them by passing a shield law for journalists and specific legislation to guarantee privacy rights for all. A bipartisan group of House members—libertarian Republicans and progressive Democrats—has proposed a Telephone Records Protection Act, which would require that the government obtain court approval to get telephone records from service providers. That’s a baseline standard for protecting the privacy of every American, including the reporters, imperfect as they may be, who arm the citizenry with the power which knowledge gives.