Yes, Trump officials spied on reporters. But every president abuses the press.

Photo (cc) 2018 by Adam Fagen

Previously published at GBH News.

The revelation last week that the Trump Justice Department had spied on three Washington Post reporters’ phone records barely caused a stir. But as much as I’d like to think that such behavior would shock the conscience, I can understand why the story failed to resonate. It was, after all, the sort of thing that all administrations do. To invoke a pandemic cliché, it was a sign that nature is healing.

Not to sound cynical and world-weary. We should be outraged. We should be shouting from the rooftops. When the government uses its awesome legal powers to stymie journalists who are trying to do their jobs, we lose our ability to hold the powerful to account. The incident would stand as yet another example of former President Donald Trump’s authoritarian tendencies — except that, at least in this instance, his actions were right in line with those of his predecessors.

As Jon Allsop of the Columbia Journalism Review wrote, “it’s not ‘bothsidesism’ to call out loathsome things that both sides are actually doing.”

So what happened? Devlin Barrett of the Post reported last Friday night that the Justice Department informed current Post journalists Ellen Nakashima and Greg Miller and former Post journalist Adam Entous that their phone records had been obtained, and their email logs had been unsuccessfully sought, for mid-April through July of 2017. The phone records showed whom the reporters were in contact with but did not reveal the contents of the calls.

There are a few details that make this particular exercise of executive power especially disturbing. The three reporters were delving into the 2016 Trump campaign’s ties to Russia during the period in question. The records were sought in 2020, when the attorney general was Trump enabler William Barr. Thus the incident could be seen as part of Trump’s long-standing obsession with covering up his ties to Russian interests.

In other respects, though, it was business as usual.

I wrote a commentary in 2012 for HuffPost headlined “Obama’s War on Journalism.” It’s a matter of public record that Barack Obama, during his eight-year presidency, showed a shocking lack of regard for the role of the press in a free society. Obama and his attorney general, Eric Holder, were obsessed with identifying government officials who had leaked sensitive or embarrassing information to the press. One reporter, James Risen of The New York Times, was threatened with jail for several years.

The Obama years were extreme but not exceptional. Previously, then-Times reporter Judith Miller actually did a stint behind bars for refusing to cooperate with an independent counsel’s investigation into possible wrongdoing by officials in George W. Bush’s administration: Someone had publicly identified a CIA operative in apparent retaliation for an op-ed (oops, guest essay) her husband had written for the Times that accused officials of ignoring evidence contradicting their claim that Iraq was trying to build nuclear weapons.

At least in that case, Bush had nothing to do with the investigation that landed Miller in jail. But Bush hardly had clean hands. After the Times reported that Bush’s National Security Agency was illegally spying on Americans, Bush denounced the paper’s work as “a shameful act,” and people around him urged that the Times be prosecuted under the World War I-era Espionage Act. The Times won a Pulitzer Prize for its revelations.

Of course, Richard Nixon’s attempts to retaliate against the press were legendary, ranging from including hostile reporters on his “enemies list” to threatening to strip The Washington Post of its television stations.

A central dilemma in all of these cases is that though the First Amendment offers robust protections for anything that the media might publish or broadcast, it is relatively silent on protections for reporting. In Branzburg v. Hayes, the 1972 decision that reporters do not have a constitutional right to protect their anonymous sources, Justice Byron White wrote that “news gathering is not without its First Amendment protections.” As a general rule, though, reporters have no more protections in going about their jobs than do ordinary members of the public.

Will the situation improve under President Biden? Not likely. As the CJR’s Allsop pointed out, the Biden Justice Department didn’t just inform the three Post journalists that they had been spied upon — it went out of its way to endorse the practice. Marc Raimondi, a spokesman for the current Justice Department, was quoted in the Post’s account as saying that the department “follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”

Raimondi added — shades of Obama and Holder — that “the targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”

With public approval for the media near record lows, and with the courts unlikely to carve out any new protections for journalism, it’s not realistic to think that things are going to change for the better any time soon.

At the very least, though, the president could issue guidance to his Justice Department, backed up with a strong public statement, that the government will not spy on, subpoena or prosecute journalists except under the most dire life-and-death circumstances.

Biden appears to be intent on breaking with his predecessors in many ways, especially regarding the size and scope of government. Respecting the role of the press would be one way that he could ensure greater scrutiny of that government on behalf of all of us.

The fairness doctrine is dead and buried. Let’s stop trying to bring it back to life.

Following the death of Rush Limbaugh, a number of observers — including me — noted that Ronald Reagan had paved the way for him and other right-wing talk show hosts by ending enforcement of the fairness doctrine. That rule, part of the FCC’s toolbox for decades, required broadcasters to air opposing views and offer equal time to those who had been attacked.

So why not bring it back? It’s a suggestion I’ve seen a number of times over the past week. But though the idea of enforcing fairness on the airwaves has a certain appeal to it, the fairness doctrine is gone for good, and for some very sound reasons. For one thing, it applies only to broadcast, a shrinking part of the audio and video mediascape. For another, you can’t apply it to new technologies without violating the First Amendment.

The U.S. Supreme Court case that upheld the fairness doctrine and that simultaneously started the clock ticking on its eventual demise is Red Lion Broadcasting v. FCC, a 1969 decision based on the “scarcity rationale” — the theory that because the broadcast spectrum is limited, it may be regulated in the public interest.

The unanimous decision, written by Justice Byron White, involved an evangelical preacher named Billy James Hargis, who anticipated the likes of Jerry Falwell and Pat Robertson by a good decade. In a 15-minute tirade, Hargis attacked a journalist named Fred J. Cook, who had written a critical biography of Barry Goldwater, the 1964 Republican presidential candidate.

According to Hargis, the newspaper where Cook had worked fired him for making false accusations against city officials, and was a communist sympathizer besides. Cook contacted the Red Lion-owned radio station in Pennsylvania where he’d heard Hargis’ rant and demanded equal time. Red Lion refused, citing its free-speech protections under the First Amendment.

Justice White’s decision follows two main threads — that the FCC was well within its authority, as granted by Congress, to enforce the fairness doctrine and order Red Lion to provide Cook with an opportunity to respond; and that the reason the FCC had such authority was because of limits to the number of radio stations that can be on the air in a given coverage area. For instance, White writes:

Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.

Later on, he adds:

Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.

Red Lion argued, among other things, that technological advances were making the fairness doctrine obsolete. Justice White replied that new uses for additional broadcast spectrum were quickly eating up that additional capacity, and that the demand was likely to exceed supply for many years to come. It was a crucial point — and it also anticipated the situation that developed in the post-Reagan era.

White’s decision explains why the scarcity of broadcast spectrum was the key to upholding the constitutionality of the fairness doctrine. I want to drive that home for those who think a new fairness doctrine could be applied to, say, satellite radio, cable television and the internet. Without scarcity, there is no constitutional rationale for the regulation of content. And with cable and satellite, there are hundreds of options; with the internet, the choices are theoretically infinite.

If Fred Cook wanted to respond to the not-so-good reverend today, he could attack him on Twitter, start a podcast, set up a blog — whatever. But he would not be able to demand redress from the radio station given that he would have multiple other ways of making his voice heard. (He could also sue for libel if he believed Hargis’ words were false and defamatory.)

The central role that scarcity plays in these legal calculations can be seen in another case where there was no scarcity — Miami Herald Publishing v. Tornillo (1974), in which the Supreme Court unanimously overturned a Florida law requiring newspapers to offer a right of response to political candidates who had been criticized.

In a unanimous decision, Chief Justice Warren Burger writes that even though media concentration and the demise of newspaper competition had led to a scarcity problem similar to that which prevailed in broadcast, it was the result of market forces rather than the unbreakable physical limitations of the broadcast spectrum. In order to start an over-the-air radio or television station, you need a license from the government, whereas anyone, at least in theory, is free to start a newspaper. Burger writes:

[T]he implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years.

First Amendment protections are extraordinarily high, and they can only be breached for extraordinary reasons.

When Reagan’s FCC stopped enforcing the fairness doctrine in 1987, it cited the rise of cable TV as signaling the end of scarcity. I would argue that the FCC acted too soon. But by the mid-1990s, there was no longer any good reason for the government to regulate speech simply because it had been broadcast over the public airwaves.

Rush Limbaugh, Fox News, Alex Jones and the like have done serious damage to our democracy. But as Justice Louis Brandeis wrote in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

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28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

SHOP TALK AT THIRTY
Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Screen Shot 2013-09-23 at 7.27.12 AMEvery few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that 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.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.