Dear Professional Press, You Aren’t Special

The First Amendment is one of the greatest things about the U.S. Constitution. But in these days of press fainting with a bout of the vapors, it is also worth noting that the First Amendment applies to all of us, not just the folks with the PRESS label sticking out of their fedoras.

clark-kent-reporterIf you are involved in the commission of a crime, you don’t get to magically yell “press” and have the issue pass by. While there’s no role for the government in suppressing speech, the government has a vested interest in fighting crime.

The press does not have special powers not afforded to the rest of us. If you have material relevant to a crime and think that magical source protection applies, there’s no constitutional right to a confidential source.

Even worse, we live in an era where the artificial distinction between professionalized journalism and journalism created by amateurs has been obliterated. You aren’t magically “press” because you print something on paper and have a (dwindling) amount of people who pay you for it.

That’s why you can’t have this protected class of First Amendment practitioners. The Constitution protects us all but it doesn’t elevate the professional press above the rest of us.

I supported investigations into the leaking of classified national security material under the Bush administration, and while I do think there’s a legitimate issue about over classification of information, I believe that the law is the law and you work knowing the consequences of flaunting that. Even when I agree that the information morally should be exposed, those who leak this sort of classified information must deal with the legal consequences of their actions, professional press or not.

  • http://brianzick.com brian zick

    Oliver
    So many commenters, so little comprehension of what you actually wrote.

    You are absolutely correct about the whiny press appointing themselves superiors, who should be above the law. As a group, they basically don’t know the difference between exposing government misconduct via whistleblowers, and aiding and abetting government misconduct (such as exposing the name of a covert CIA agent). The New York Times still doesn’t understand that Judith Miller was properly jailed by Patrick Fitzgerald. And a stoopid “Press Shield” law would only give “journalists” (defined by whom?) a stay out of jail card, even when they are themselves complicit in a crime, a la Miller.

    As you quite clearly wrote, you fault over classification, but – equally clear but rather by implication – that’s a totally separate subject, upon which you did not expand in this particular blog post.

    It is a fact, whether any of your commenters like it or not, that revealing government secrets is a prosecutable offense. That’s why actual whistleblowers, and the legit reporters who report on their revelations, are genuinely heroic, because they effectively declare their willingness to go to jail to reveal the wrongdoing. In the same way that civil disobedience has often resulted in participants going to jail. Part of the reason the Civil Rights movement was successful was because the government’s punishment against participants (jail, fire hoses, dogs) fueled public backlash. Reporters willing to go to jail to expose misdeeds also gain a similar respect from the broader public, and the misdeeds thereby gain increased attention.

    What Rosen and the AP have in common is that they both appear to have revealed legitimately secret information, not very different from broadcasting troop size and position in a war zone, making the enemy aware. Not by intent, but by plain irresponsibility. However, stupid has never been a viable excuse for committing a crime.

    If reporters have some legal shield, they would no longer have an incentive to report any more responsibly than Judith Miller. There would be no reason for the pubic to pay further attention to any real whistleblowing revelations, because nobody would be seen to put themselves at risk to tell a story.

    We can save for another time – when it’s an issue you actually address in a post – the appalling behavior of President Obama’s effective trashing of the 4th Amendment, his support for warrantless wiretapping, and the litany of other grievances you have with the administration, which you have never been shy to discuss.

  • iDonald

    Garbage.

    In order to be a president nowadays, you must be a liar and a misleader or the big money will end your attempt.

  • OldUncleDave

    Another Obamapologist avoiding cognitive dissonance by refusing to acknowledge his savior is no better than his predecessor. If Bush had done this I doubt you’d be defending him.

  • http://twitter.com/lzetz Liandro Zetz

    I suppose the writer thinks this is insightful but it’s not. In fact, he seems to have missed the point entirely–as others have so clearly pointed out. “Even worse, we live in an era where the artificial distinction between
    professionalized journalism and journalism created by amateurs has been
    obliterated,” as the writer so clearly demonstrates.

  • Art Thomas

    ” …the government has a vested interest in fighting crime.” Except when they are the criminals. Then they have a vested interest in covering their derriere.

  • Sam Brasel

    This post consists of an endless series of straw-man arguments. Tellingly, the term “whistle-blower” appears nowhere within it. For a moment, forget about the specific crime that is being investigated here and just concentrate on what the government did. They possibly obtained not just the phone numbers of criminals but also the phone numbers of non-criminal government whistle-blowers. This type of behavior by investigators makes it much more difficult for the press to communicate with law-abiding whistle-blowers, forcing them to use burner phones and the like in order to contact them. This is why, contrary to what Wills falsely claimed, the press has indeed been treated differently than other businesses by investigators. Whistle-blowers give the public insight into what the government is actually doing; witness the Wikileaks Iraq Apache helicopter collateral murder video. Why did Wills ignore this issue in his post? Was it ignorance or was it because he wrote the post in bad faith? C’mon, Wills, ‘fess up.

  • http://twitter.com/WolfeNotes Bill Wolfe

    You are a tool, my friend, either you are clueless on the issues or totally lacking in integrity.

  • http://www.facebook.com/dave.eff.3 Dave Eff

    Wow. For a minute there, I thought the world turned on it’s axis, I was decade younger and reading Power Line. The tribalist knee-jerk response to circle the wagons around Dear Leader when the media pounces is awfully familiar.

  • antoinepgrew

    The AP isn’t a blogger like you. It is part of the Fourth Estate of the government. THAT IS protected by the First Amendment, and so is the confidentiality of its sources (US Supreme Court).

    How old are you?

    • Zython

      So wait, blogging isn’t covered by “freedom of the press”? Then who the hell decides what constitutes “press”? You? The government? The current press?

    • http://www.oliverwillis.com/ Oliver Willis

      “The AP isn’t a blogger like you. It is part of the Fourth Estate of the government. ”

      LOL what?

      • dbtheonly

        Oliver,

        Wasn’t it France who had the Government estates?

        But you’ve hit the key issue that goes back as far as Washington; as far as Presidents are concerned.

        Government has a legitimate right to preserve secrets.
        Government tends to “over secretize”
        Press (however we define it & yes, you & Ben are “Press”) wishes to “get the scoop”.
        Getting the scoop often conflicts with Govt secrecy.
        Revealing secrets can cause serious problems.

        So how do you balance?

        I’m not sure there is an answer.

  • poyani

    Is this article a defense of Obama’s conduct against AP or Nixon’s conduct against the New York Times re the Pentegon Papers? Oops never mind. I just realized it doesn’t matter. It is just as ridiculous a defense in either case.

    • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

      Hey, don’t mess with Nixon. With wage and price controls, the EPA, and the reopening of diplomatic relations with Communist China, he was our greatest socialist president. ;)

  • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

    LOL! This is a conservative right-wing post. Calling for “Law and Order for all” doesn’t address the real issue of warrantless searches which violate the Constitution regardless of whether you are in the press or a private person.

    • dbtheonly

      Greg,

      Subpoenas were issued.

      • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

        Perhaps I’m missing something, but as far as I know a subpoena is not a warrant. A subpoena is issued by the prosecutor WITHOUT going to a judge first. The very thing that is wrong with the law is that it allows warrantless subpoenas.

        • David DeRosa

          The law maybe should be changed but they followed the law.

          • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

            1. Unclear that they did follow the law. 2. It is only the law because the SCOTUS won’t uphold the Constitution.

  • YesMan

    You’re a moron, just give up blogging, shill.

  • JoeBuck

    I am amazed that you would defend this kind of abuse. You are correct that non-professional journalists are entitled to the same protections as journalists, but the Obama administration’s war on leaks has reached a point where Obama is out-Nixoning Nixon. Prosecuting whistleblowers under the Espionage Act is vile, and obtaining two months of phone records on a hundred AP reporters is the kind of thing Nixon could only dream of. Meanwhile top administration officials are leaking tons of classified information to their journalist friends to spin stories their way, and threatening whistleblowers with jail if they dare reveal that there is another side to the story (yes, Bush officials did this too, but Bush was less aggressive than Obama in the legal persecution of whistleblowers).

    Greenwald is correct to call you out on this. I suppose you think that the torture of Bradley Manning was also justified?

    • Dennis

      The buck stops somewhere else.

      • drsquid

        I thought the Traitor Party loved Nixon. Now he’s a BAD GUY now that you might be able to score a political point.

        Conservatives have absolutely no morals. They are probably the greatest argument against morals coming from a higher power.

        • Dennis

          You guys are shilling for Obama to beat the band right now. You’re repeating what Oliver said, who follows the Media Matters talking points memo. So what morals do you have?

          • Christopher Foxx

            And Dennis can always be counted on for the “Never mind us, what about you?

  • thedarryl

    flout, not flaunt

  • disqus_QYT1Hg9bq2

    Sell-out.

    • http://wonderwheels.blogspot.com/ Gregory Wonderwheel

      I thought this was an Onion blog. Am I wrong? Is Willis just another conservative in a liberal t-shirt?

  • brif

    oliver cannot be serious. The Justice Department seizes records for over 20 phone lines used by over 100 journalists without providing notice and oliver dismisses it as merely “press fainting with a bout of the vapors”?
    Despite oliver’s patronizing, i’m sure the press is well aware that they don’t have a constitutional right to a confidential source. so what? does that mean oliver is okay with this type of mass records seizure any time an article about terrorism with quotes or information from an anonymous source is published?
    Even for an obama apologist like oliver this post is disgraceful.

  • HalPhillipWalker

    One of the best pieces I’ve read since the AP story broke.

  • ninjaf

    In the past, the person who leaks the information is the one who pays the consequences. The press can print whatever information they can get their hands on. Using subpoenas to find out who a source is puts a chilling effect on future whistle blowers, whether they are sharing classified information or not.

    Freedom of the press is about more than freedom of speech. It is about transparency in government and holding our leaders accountable. If the press does not report to the public these kinds of findings, how will we know about them? Power does not prefer transparency. We should be protecting these rights vehemently.

    If you want a more transparent government, then we need a more adversarial press. And printing information the government does not want known is crucial to that.

    • http://twitter.com/fasteddie9318 fasteddie9318

      Apart from having their phone records subpoenaed, in an effort to find the person who leaked the information, what consequences has anybody at the AP suffered over this? They printed the story and they’ll be allowed to print the next one too. As “in the past,” if anybody faces real consequences for this leak, it will be the leaker, not the reporters.

      You talk about a the potential chilling effect for future whistleblowers, but how is this any more chilling than the Bradley Manning case, or the John Kiriakou case, or the prosecution of Daniel Ellsberg over the Pentagon Papers? How is it any more chilling than what happened to Teresa Chambers, or Bogdan Dzakovic, or Vernie Gee, or any number of government whistleblowers over the years who have suffered terrible consequences for their whistleblowing? Ellsberg, arguably the best-known whistle-blower in American history apart from Mark Felt, said this about his prosecution:

      “I felt that as an American citizen, as a responsible citizen, I could no
      longer cooperate in concealing this information from the American
      public. I did this clearly at my own jeopardy and I am prepared to
      answer to all the consequences of this decision.”

      Ellsberg knew he was breaking the law and felt that he had no choice because the public needed to know the information he was leaking. He was prepared to accept the consequences.

      The bottom line is that this country treats whistleblowers like garbage despite our pretensions toward transparency; it did so long before Barack Obama came into office and will continue to do so long after he leaves. If you want to see that changed, work to elect a Congress that will replace the Whistleblower Protection Act with something that actually tries to protect whistleblowers, and to elect presidents who will appoint USSC justices who will overturn Garcetti v. Ceballos, the 2006 case that held that public employee whistleblowers have no first amendment protection from employer retribution, which was decided on a 5-4 ruling with all five Republican justices ruling against protecting whistleblowers.

      • brif

        That’s how low you’re willing to go eddie? the government can seize whatever it wants as long as their are no consequences suffered?

        • http://twitter.com/fasteddie9318 fasteddie9318

          Were there any laws broken? The records were properly subpoenaed under the current laws of the land. The idea that this particular episode is somehow uniquely scandalous is silly, and anybody who pushes that idea is clearly grinding a political axe.

          If you don’t want your presidents to be able to do this kind of thing, elect a Congress that will put an end to it. That would be fine by me.

          • brif

            No, the records were not properly subpoenaed. It’s unclear who actually issued the subpoena and when it was issued. this particular episode is uniquely scandalous in that the AP wasn’t notified for about a year and was never given an opportunity to cooperate with the investigation.
            Whether or not laws were broken is to be determined. certainly there should be investigations and civil litigation.

          • http://frothslosh.typepad.com/ Ol Froth

            No laws were broken, but the way the law is written makes it extremely difficult for anyone to challenge the Constitutionality of the law, since National Security Letters are secret, and the recipient of them are legally barred from disclosing that they got one. I’m amazed that we found out about this particular fishing expidition, but now that we have, can we please find a way to end this ridiculous intrusion on privacy?

      • ninjaf

        I am not saying that this instance is worse than any of those you cite. I am saying that Oliver is wrong in saying that the AP is over reacting.

  • dbtheonly

    I’ve been concerned by the outrage over the AP story.
    Please correct me if I’m wrong but:
    The leaks were:
    1. Classified information
    2. From/about the CIA
    3. Counter-Terrorism
    4. Action on Foreign soil

    and the records were:
    1. Obtained by subpoena
    2. Issued by a Federal Judge
    3. Upon creditable evidence
    4. That a crime had occurred.

    So if we admit that the Government can have some secrets; why is this a “scandal”?
    And why am I afraid to say this to Alyson Chadwick?

    • Buzz Killington

      I agree with you for the most part about this particular case, db. The administration’s overall record for secrecy and prosecuting whistle-blowers may be manifesting itself here just because the media themselves were the target this time. Funny how people never fail to notice when their rights are the ones being threatened.

      The only thing I find particularly objectionable about this case is that the subpoenas were kept secret from the AP, and apparently overly broad. Frankly, it’s pretty late in the game for the media to start complaining about this sort of thing.

      • brif

        The media has been complaining about “this sort of thing” for a couple years now buzz. you’ve obviously never heard of james risen.

        • Buzz Killington

          Hey, if you’re content with the extent of the media coverage, fine. I am not.

      • dbtheonly

        Well Buzz,

        I can see the utility of not announcing the seizures before the records were obtained for fear of destruction. & I didn’t notice an unconscionable delay in notification. I’ve no way of knowing whether the subpoenas were over-broad or not but that ought to be an issue that reasonable people can work out. Instead we have AC demanding the removal of AG Holder.

        Perhaps I’ve seen one too many “Loose Lips, Sink Ships” posters at the surplus store. Perhaps I’m just appalled when the Republicans “outed” a CIA Agent or CIA safe house & the MSM jumped to broadcast. Perhaps it’s just the “anything goes” attitude with no regard for the potential injury to anyone in the way of the media juggernaut. The guy Oliver pictured used his power responsibly. The contrast is too evident.

  • JozefAL

    What exactly has the AP been doing in regards to ongoing efforts to prosecute Julian Assange and Bradley Manning for their “leaks?” I certainly haven’t heard of any official releases from the AP supporting Manning’s immediate release.

    • JoeBuck

      But too many Obama loyalists think that the torture of Bradley Manning is just fine. Yes, AP is hypocritical in not reacting to this administration’s assault on civil liberties until it affected them, but that doesn’t make it right.