We desperately need to bring our press freedoms into the 21st Century. The AP issue could have been a catalyst for such a discussion, instead of a witch hunt to tarnish the president. Yet, the need persists.
The Associated Press debacle (which in the Conservative playbook is to be referred to as a “scandal”) actually presents an extraordinary opportunity for Congress and the courts to create a new paradigm for “Freedom of the Press”. And an opportunity to bring that valued freedom into the 21st century. Unfortunately, Congress would rather find ways to tarnish the administration through the incident, and it will be an opportunity missed.
When the First Amendment was written in 1791, life was much simpler, and “the press” meant just that: someone who owned a printing press, and used it to print newspapers, pamphlets and other such documents. Today, that definition is virtually useless. Throughout our history new questions arise as times change: who is a journalist…what comprises the media (press)…what freedoms of the press are sacrosanct and which can be abridged…and what shields are journalists to be given, that other citizens do not enjoy?
That immediately brings up the question of who is a “journalist” in today’s digital world? The Supreme Court has actually interpreted this rather liberally over the years, with the seminal case being Lovell v. City of Griffin (1938). In that case Chief Justice Charles Evans Hughes defined "press" as "every sort of publication which affords a vehicle of information and opinion." This right has been extended to media including newspapers, TV and radio, books, plays, even movies. Yes, but that was before the internet arrived, which now brings up the issue of bloggers, social media etc. Are these folks the “press”? If someone in government leaks sensitive information to a blogger, is the blogger then given the protective shield of a journalist? Worthy of discussion.
Then there is the issue of what can be published and what is not legally allowed? The unlimited freedom to publish anything about any one or on any subject has always been constrained. SCOTUS itself has reversed itself many times. The Espionage Act of 1917 forbid publishing certain information, for example dates and times of troop ship sailings. To quote Justice Oliver Wendell Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The operative words are “clear and present danger” – and that has been the litmus test in every case, including presumably the current AP uproar. Again, this is the issue Congress should be discussing – especially today with the advent of potential government intrusion into email and cell phones.
As it relates to national security, we again have a conundrum: the WikiLeaks/Bradley Manning situation. Are foreign journalists (and their websites) exempt from our freedom of the press rules and constraints? And the larger issue -- is a leak to the press a whistleblower event, or is the leaker doing it for personal or private gain of some sort? If the latter, is the press a partner in this personal gain? Does the press wish to be an abettor to either a beach of national security, or possibly promote some political agenda? In general, the Supreme Court has been loath to employ “prior restraint” (i.e. an attempt by the government to prevent the expression of ideas before they are published), and on the press’s right to freely seek information. And it has been especially harsh on government censorship. But even here there are exceptions, and again we must revisit what constitutes the “press” in today’s media world?
The major reason such a definition is needed; the “press” does have special privileges ordinary citizens do not enjoy. While there is no Federal “Shield Law”, virtually all states have enacted special legislation designed to protect reporters' privilege, and/or the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. To whom do we now confer this special privilege in the internet age?
In one of the more recent cases before SCOTUS (Branzburg v. Hayes 1972), when a reporter’s rights clashed with the First Amendment, Justice Lewis F. Powell, stated that a claim for press privilege, "should be judged on its facts by the striking of a proper balance between freedom of the press". What we have now is more questions than answers; but also an excellent opportunity to define and resolve some of these questions through a cogent discussion of the facts. That opportunity has been dismissed in favor of partisan wrangling. Yet, the need persists, and one can only hope that there will be enough enlightened people who can advance our press freedom into the digital age.