Targeting of the AP is neither new nor illegal. Just outrageous.

AP logoA lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.

But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.

Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.

An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.

But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.

The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.

Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:

Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.

About these ads

11 thoughts on “Targeting of the AP is neither new nor illegal. Just outrageous.

  1. Nancy mades

    You are so completely right on this I want to print it out to use as part of a lesson during next year’s journalism unit. Do you mind?

  2. Dan Kennedy Post author

    @Nancy: Thank you! Everything here is licensed under Creative Commons, so no permission needed.

  3. Kris Olson (@KO_Reporter)

    “The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way.” A little harsh, no? “Violates the First Amendment vs. violates the SPIRIT of the First Amendment” = semantics. I get the distinction between what the DOJ can/should do, and it’s a valuable one. But if the government is chilling/hamstringing the pursuit of truth to the point where all the “free press” can print is sanitized, state-approved B.S., then I’d say that saying the DOJ “violated the First Amendment” is a fair statement, not in the legal sense, as you point out, but certainly in a philosophical sense.

    1. Dan Kennedy Post author

      @Kris: I think we should aim for literal accuracy. The Supreme Court has been passionate over the years in making it clear that the First Amendment is for everyone, and that singling out the press for special privileges is itself a violation of the First Amendment. I happen to agree with that.

  4. Josh Stearns

    Thanks Dan – well said. A few more good links on how this fits within the law. See also: “In AP surveillance case, the real scandal is what’s legal” by Timothy B. Lee at the Washington Post http://www.washingtonpost.com/blogs/wonkblog/wp/2013/05/14/in-ap-surveillance-case-the-real-scandal-is-whats-legal/ and ProPublica’s “No Warrant, No Problem: How The Government Can Still Get Your Digital Data.” http://www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-your-digital-data and the Digital Media Law Project’s overview: http://www.dmlp.org/blog/2013/justice-depts-media-investigation-policy-falls-flat-compared-other-protections-against-pre

  5. Cynthia Stead

    Branzburg vs. Hayes is truly remarkable in that it antedated blogging and internet communication by decades (I’m a big fan of blogging and message boards). Its carbon-paper protection now extends to millions, which could not have been foreseen. When I’ve seen shield laws proposed, they’ve often had a ‘licensed journalist’ component, which is far more dangerous to the first amendment than records searches. Ironically, journalists were likely far more cagey during administrations that they didn’t personally support the aims of – reporters were likely lulled into thinking that their philosophical friends would never regard them as minions instead of partners.

  6. Ken Rowland

    Excellent post; summary. Ditto to the copying, but for enabling me to wallpaper over the analog mind of a grey-hair spinning near rudderless today in a neo-nexus of digits. It appears not our fathers’ AP stylebook; perhaps Chicago’s? Whew! There’s also a thread of disgust, of some sadness, and of my own personal cynicism, in my read of your last graph; “The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.” (I’m in agreement, on multiple Obama-isms but, here, a pointedly focused ‘Shield Law’ is oxymoronic; emphasis on the moronic). “So little by little time brings out several things into view, and reason raises it up into the shores of light.” (Lucretius). Journalism is for the curious, hopefully for producing a more clear edification, and for our education. At its best and at its most conclusive, factual form, journalism can be the teacher that really could “get a man to understand something, when his salary depends on his NOT understanding it.” (Sinclair). Every tributary to the now frothing DC delta really does seem the contributor to what is a growing, morphing of “an enigma, wrapped in a riddle, shrouded in mystery.” That is what Winston Churchill said of the Soviet Union, a centrist-system, a communistic-managed cluster that later imploded upon itself, as that country got way out over its skiis… or too arrogant for its pounding, grinding boots. Did anyone throw a shoe at Eric Holder the other day? Was a journalist in the room?

  7. Maureen Boyle

    Dan,
    Well said. Hopefully my students will now
    recognize the importance of learning about Branzburg v. Hayes – even though it was decided way before they were born. I also plan to incorporate your piece next semester.

Comments are closed.