It has been 40 years since the U.S. Supreme Court issued the ruling in the case of New York Times Co. v. United States that embraced the First Amendment argument that The New York Times and The Washington Post could publish leaked documents--in the form of the Pentagon Papers--without fear of government censorship or prosecution.
Jun 22, 2021
In his concurrence with that decision, Justice Hugo Black wrote: "The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people."
Rejecting the argument that "the Executive Branch, the Congress, and the Judiciary can make laws ... abridging freedom of the press in the name of 'national security,'" the justice explained that, "To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.'"
"The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment," declared Black. "The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security."
That was a wise statement.
Unfortunately, it was never fully embraced by those in power.
This month has produced jarring revelations regarding secretive efforts by the Trump administration's Department of Justice to seize phone records-- and in some cases emails--from journalists at CNN, The New York Times and The Washington Post.
The response from President Biden and Attorney General Merrick Garland to the revelations has been encouraging. But the work of putting the Department of Justice fully and firmly on the side of press freedom is far from finished.
The good news is that Biden has said the seizure of the phone records of reporters is "simply, simply wrong." And White House press secretary Jen Psaki says that "the issuing of subpoenas for the records of reporters in leak investigations is not consistent with the President's policy direction to the Department."
That's a departure from the approach of recent Democratic and Republican administrations. So, too, is the statement from Department of Justice spokesman Anthony Coley, who says that "in a change to its longstanding practice," the department "will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs."
Coley announced early this month that, "The department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists." To that end, Garland has met with executives of CNN, the Times and the Post and they "agreed on the need for strong, durable rules" to address spying on journalists.
The Associated Press concludes that, "In ruling out 'compulsory legal process' for reporters in leak investigations, the department also appeared to say that it would not force journalists to reveal in court the identity of their sources."
These are good signals, which need to be codified.
Yet, they are insufficient to protect the right of the people to know how their government is operating at home and abroad.
Reporters Committee for Freedom of the Press executive director Bruce Brown summed things up well when he welcomed the Justice Department's new commitments but warned that "additional policy reforms" will be needed "to further safeguard these essential rights."
One area where the Department of Justice should change course involves the ongoing effort to extradite Julian Assange from the United Kingdom. The WikiLeaks founder is a controversial figure. Critics claim he should not be afforded protections that shield journalists. Nevertheless, the Justice Department's moves to prosecute Assange under the Espionage Act--for working with a whistleblower to acquire and disseminate classified documents--poses a clear threat to press freedom. As Brown explains, "Any government use of the Espionage Act to criminalize the receipt and publication of classified information poses a dire threat to journalists seeking to publish such information in the public interest, irrespective of the Justice Department's assertion that Assange is not a journalist."
Human Rights Watch executive director Kenneth Roth says, "The Assange prosecution threatens these basic elements of modern journalism and democratic accountability."
When Assange was indicted during Trump's presidency, Ben Wizner, the director of the American Civil Liberties Union's Speech, Privacy, and Technology Project, warned: "For the first time in the history of our country, the government has brought criminal charges against a publisher for the publication of truthful information. This is an extraordinary escalation of the Trump administration's attacks on journalism, and a direct assault on the First Amendment. It establishes a dangerous precedent that can be used to target all news organizations that hold the government accountable by publishing its secrets. And it is equally dangerous for U.S. journalists who uncover the secrets of other nations. If the U.S. can prosecute a foreign publisher for violating our secrecy laws, there's nothing preventing China, or Russia, from doing the same."
Trump is out of office, and so is former Attorney General William Barr. But their influence on the Department of Justice lingers. That influence will threaten press freedom for so long as the department maintains its dangerous interpretation of the Espionage Act as a tool to punish whistleblowers and those who tell the American people what is being done in their name but without their informed consent.
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