Column: Inside the First Amendment, by Gene Policinski

Freedom to report the news requires the freedom to gather it.

In the months ahead, that basic concept — so central to the First Amendment’s protection of a free press — will also be at the heart of the ongoing debate over how far government officials may go in pursuit of those responsible for “leaking” classified information to journalists.

The debate kicked off new fervor with disclosure of a wide search conducted by the Department of Justice in which it seized phone records of the Associated Press that spanned two months, multiple offices and even some personal lines.

The bushel-basket, clandestine nature of the seizure meant AP was not given the opportunity to argue for even a more-focused search on a specific leak — leaving the work of up to 100 journalists on multiple stories exposed to government scrutiny.

Then there was the outright label of criminal conduct, as a “co-conspirator and/or aider and abettor,” attached by an FBI agent to James Rosen, chief Washington correspondent for Fox News. Justice Department officials apparently believe Rosen solicited confidential information from a U.S. State Department source about a 2009 pending North Korean missile launch.

In seeking a search warrant in 2010 to secretly examine Rosen’s emails, the agent said the journalist’s tactics included “employing flattery” and playing to the source’s “vanity and ego.” The source later was indicted, and reportedly the FBI riffled through Rosen’s emails for at least 30 days, along with phone data and computer records of Rosen’s trips in and out of the U.S. State Department buildings.

• Mass collection of journalists’ phone call information.

• Threats of “criminal liability” aimed at reporters who get information from confidential sources in the government.

• The idea that “flattery” equals espionage.

• Combined with an unprecedented six prosecutions for alleged leaks — double the number under all previous administrations combined.

It all adds up to a not-so-subtle message: “Don’t ask, don’t tell.”

But asking official sources to tell what they know, on or off-the-record, is essential to the role of a free press as an independent source of information about the government’s inner workings.

Conscientious whistleblowers in recent years have alerted fellow citizens to morally questionable interrogation tactics and potentially illegal wiretapping of phone conversations, and spurred public outcry over issues such as the Pentagon’s failure to provide in a timely manner and in sufficient numbers supplies of available, mine-resistant vehicles to U.S. troops in the Middle East.

The basic question of how a free press must function will again complicate a renewed push in Congress for a so-called shield law — the “Free Flow of Information Act.” In setting out when a journalist may choose not to tell the name of a confidential source, and perhaps when the government may not ask, the methods of newsgathering will be front and center.

Any such law also will have to address First Amendment concerns over becoming a back-door form of official “licensing” of who is entitled to the full rights of a free press.

The Associated Press’ CEO Gary Pruitt, in his letter to the Department of Justice objecting to the records seizure, said that if the practice went unchallenged, the long-term result would be “the people of the United States will only know what the government wants them to know … That’s not what the framers of the Constitution had in mind when they wrote the First Amendment.”

As some draw a connection between the AP and Rosen flaps to the Nixon anti-press era, it’s also instructive as this national debate continues to consider the words in 1971 of U.S. District Judge Murray Gurfein.

In his first days as a federal judge in the Southern District of New York, Gurfein rejected the initial government attempt to stop The New York Times from publishing the Pentagon Papers. In his ruling, he said:

“The security of the nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know. These are troubled times. There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form.”

True then. True now.

 

Gene Policinski is senior vice president and executive director of the First Amendment Center. Email him at gpolicinski@fac.org