“The press was protected so that it could bare the secrets of government and inform the people.”
In writing those words in 1971, U.S. Supreme Court Justice Hugo Black explained clearly why the First Amendment guarantees Americans a free press.
Just 12 days ago, President Barack Obama declared that free speech and an independent press are “essential pillars of our democracy.”
And yet ...
Obama's own Justice Department has taken a sledgehammer to one of those pillars.
In an unacceptable, heavy-handed move, the department secretly seized two months' worth of phone records for reporters and editors of the Associated Press.
The records listed outgoing calls for the work and personal phone numbers of individual journalists, for the general AP office numbers in New York City, Washington, D.C., and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery. The government seized the records for more than 20 separate AP telephone and fax lines used by more than 100 journalists.
As of Tuesday, the government would not say why it sought the records. It appears that the government was hunting for the source of an intelligence leak, the person who provided information contained in a May 7, 2012, AP story that described the CIA's foiling of a terrorist plot to plant a bomb on an airplane.
The government certainly can investigate when national security is involved, and if someone wrongly disclosed classified information that could be a crime.
But it's unacceptable for prosecutors to undertake a sweeping fishing expedition such as this, mining massive amounts of data in the hopes of finding the one phone number that might lead to the source of the leak in question. Those 100 AP journalists were working on many hundreds of stories during that two-month period — and virtually all of the stories had nothing to do with the terror plot.
Sen. Charles Grassley, R-Iowa, who has called on Attorney General Eric Holder to fully explain this episode, has seen such government intrusions before. “Going after reporters' telephone records with a subpoena should happen almost never,” he said in 2008. “When it does, the bar should be very high and the circumstances extraordinary. It should never happen until every other avenue is exhausted.”
The Associated Press is the nation's largest news-gathering organization, owned by the newspapers and broadcasters that use its stories and photos. (That includes The World-Herald, whose publisher, Terry Kroeger, serves on the AP board of directors.) Washington-based AP journalists write about most everything the federal government does — from crop reports to consumer product recalls to the controversy over the killing of U.S. diplomats in Benghazi.
So how much data from such unrelated calls was scooped up by the federal prosecutors? And for what?
Most, if not all, of that telephone data involved innocent bystanders, those who have done nothing wrong. There is no legitimate reason for that information to be in a prosecutor's file.
This kind of action can have a chilling effect, intimidating government employees who see wrongdoing — the IRS auditor, perhaps, who thinks it is wrong to target a group just because it has a “Tea Party” name. Would that auditor take a reporter's call when he knows the Justice Department might be gathering up the reporter's phone records?
If the government thinks it could justify such broad, unrestrained spying on a news agency, it could just as easily rationalize such snooping against individual citizens, businesses and associations.
Sen. Deb Fischer, R-Neb., rightly demanded accountability from the administration on Tuesday, saying that “the effect of this data gathering is clear: intimidation of the press and the suppression of free speech.”
In a democracy, citizens have the right to know what their government is doing. Sometimes, the government would rather not tell. It falls to the press to make sure citizens are informed.
In 1971, the federal government cited national security concerns as it fought unsuccessfully to stop newspapers from publishing stories about the Pentagon Papers and their revelations that the public had been misled about key aspects of the Vietnam War.
Justice Black's reasoning in that case rings just as clearly now:
“The Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.”