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.