Reporters Aren't Above the Law

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Secret government investigations into speech protected by the First Amendment should alarm all of us. But we all have the same First Amendment rights; reporters don't have freer speech. And giving reporters a special privilege to withhold evidence too often leads to lazy reporting in which nameless "official sources" get to make false accusations against innocent people without any accountability for either the government or the press. Instead of lobbying for a special privilege, reporters should consistently fight for more liberty for all Americans, including greater freedom of speech and greater freedom from unreasonable searches and seizures.

The Associated Press is understandably outraged that the government used secret subpoenas to get phone records that might reveal who leaked classified information to the news wire. But the real problem is not that the government is investigating the AP; it is that the government is investigating speech about government operations. That would be just as troubling if the targets were non-journalists.

[See a collection of political cartoons on Congress.]

The government claims the AP's reporting contained classified information, but that's hard to avoid when so much of what the government does is classified. The temptation to overclassify and underdisclose must be very powerful; each administration promises greater transparency, yet each turns out to be worse than the last. That frustrates the control we're supposed to have over our government.

Media companies think the answer is to give their employees special immunities from investigation. But reporters aren't always right, either. Sometimes they team up with government leakers to wreck the lives of innocent men and women whom the leakers want to disparage publicly, like Steven Hatfill, Wen Ho Lee or Richard Jewell. When that happens, the victims have rights too. Reporters (like everyone else) have a duty to provide the evidence necessary to do justice. No one should be above the law.

[Check out our editorial cartoons on President Obama.]

A better answer is to tighten the rules for when government can act in secret and provide more protections for whistleblowers. That gives us the benefit of more public discourse about public policy without giving the press a license to smear.

Our government does too many things in the dark, and the press is often at its best when it shines a light on previously unknown programs or policies that we ought to debate publicly. We need laws that help the press shine a light on government actions, not laws that permit reporters to join government officials in the shadows.

Mark Grannis

About Mark Grannis Managing Partner at Wiltshire & Grannis LLP

national security

Other Arguments

8 Pts
A Reporter's Privilege Would Allow Crimes to Go Unpunished

No – A Reporter's Privilege Would Allow Crimes to Go Unpunished

Randall Eliason Professorial Lecturer in Law at George Washington University Law School

-5 Pts
America Has a History of Protecting Confidential Sources

Yes – America Has a History of Protecting Confidential Sources

Michael Berry Media Lawyer and Partner at Levine Sullivan Koch & Schulz, LLP

-5 Pts
Reporter's Privilege Needs the Force of Law

Yes – Reporter's Privilege Needs the Force of Law

Kevin M. Goldberg Legal Counsel to the American Society of News Editors

-15 Pts
The Time for a Media Shield Law Is Now

Yes – The Time for a Media Shield Law Is Now

Trevor Timm Co-Founder and Executive Director of Freedom of the Press Foundation

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