Flouting the spirit of the First Amendment, Congress has looked into whether laws were violated by journalists who were only reporting facts which are undeniably in the public’s interest to know about, like the existence of the network of once-secret prisons and the warrantless wiretapping scandal. It should be clear to even the most casual observer of the current Administration that it would keep the American people in the dark about much more than any Administration in recent memory.
The discussion surrounding the film “The Lives of Other People,” in which an artist and writer is spied upon by East Germany’s once fearsome secret police, or “ Stasi,” might well be instructive for those who labor, in the words of my father’s Pulitzer Prize winning journalism, in view of the “unblinking eye of omnipresent government.” As the Bush Administration seeks to gut the Foreign Intelligence Surveillance Act Court and its authorizing legislation, we would be wise to reflect on government’s tendency to regard creative people as threats.
The perennial complaint against civil libertarians, that they concern themselves with matters which should be of little moment to any one not involved in wrongdoing is specious, and has been vitiated by the scandal about National Security Letters and their misuse under the Patriot Act; individuals’ personal information has wound up in government databases solely because of activities which should be protected by the First Amendment’s “peaceable assembly” clause, in short, because of whom they know rather than anything they have done.
It is fundamental to our system of laws that it can never be unlawful to associate for political purposes with anyone. Jurisprudence which contradicts this would be more at home in apartheid era South Africa than in an America in harmony with its basic legal principles, effectively creating “banned persons."
According to Los Angeles Times’ coverage of the Aldrich Ames espionage case, the FBI has technology which enables it to read the electro-magnetic fields given off by personal computers, allowing it to discover what the citizenry is writing.
One might think that this is of little consequence for our increasingly undemocratic republic, but if a journalist is in possession of facts which the public needs to know, and if her or his rough draft is read by the government before it is read by the people, this gives an unfair advantage to a government which is also the most secretive in recent memory and at the end of a year during which, according to the New York-based Committee to Protect Journalists, more journalists have been killed than in any year since 1994.
The law has frequently lagged behind the technology, sometimes with disastrous results. The history of the Supreme Court’s interpretation of the Fourth Amendment, which mandates that law enforcement agencies obtain a warrant for any search, has included adaptive interpretation of the key words of our basic legal document as technical means for the collection of information have developed and evolved.
Some of our most prominent and valuable political writers have waded right into the warrantless wiretapping controversy, lawyers in tow. Studs Terkel, Christopher Hitchens, and James Bamford have all taken legal exception to alleged violations of their privacy rights.
Commenting on the proposed Federal Shield Law for Journalists, Mike Pence (R-Indiana) remarked to an audience concerned with post 9/11 privacy issues that while people in his district had no great affection for the press, they certainly like to know things about their government.
Journalists should have the right to shield their deep background and off the record sources from observation by the state. If they don’t, the public’s level of knowledge will be limited and the people will have a poorer understanding of threats it faces, because “evil doers” will refuse to speak to the press out of fear of capture.
Free speech not only protects the speaker, but also protects us from the speaker.
Understandably concerned about lawyer-client confidentiality, the National Association of Criminal Defense Attorneys has also joined litigation about the warrantless wiretapping scandal.
While the government has not hesitated to push the “primal fear” buttons of the population, mto increase its power, playing to xenophobic tendencies and making political use of an exaggerated foreign threat, it has also sought to limit what the public knows, thereby denying the people the means independently to assess the threat.
Government may object that it is more important to enforce the law than it is for the people to have an adequate understanding of ideas held by controversial journalistic subjects, and in the case in which there is an imminent threat of violence this makes sense, but that is a special case and ought not to effect national legislation about the rights of journalists not to be transformed into de facto adjuncts to law enforcement.
The government should benefit from the efforts of the press by reading the newspaper, just like everyone else.
