Curbing the Press
Why the government and the media haven't been this antagonistic since the Pentagon Papers case
That argument resonates with much of the public. But Geoffrey Stone, a University of Chicago law professor, says the administration is experiencing its own credibility problem. "The stakes are rightly perceived as higher, but the distrust of the administration among the public, the press, and even some judges may be higher than at the time of the Pentagon Papers." A May Gallup Poll found the public evenly divided on whether the news media should report information they obtain about secret methods the government is using to fight terrorism.
Journalists are discovering that many of the "rights" they thought they enjoyed--the ability to protect sources, access information, and publish with impunity--rest on shaky legal ground. Since the Pentagon Papers, presidents have tightened their grip on information and argued that they can keep secrets even from Congress and the courts. This administration has been particularly assertive in classifying documents historically in the public domain.
And it is not inconceivable that journalists could be jailed for publishing government secrets. In the Pentagon Papers case, Justice Byron White suggested that the government could prosecute leakers or the press under criminal laws such as the Espionage Act--an opinion the Bush administration clearly has embraced. But despite a few recent convictions of leakers, prosecuting reporters is still practically unheard of. In one 1942 exception, prosecutors hauled the Chicago Tribune before a grand jury for revealing that the United States had advance warning of a Japanese attack, though the courts never ruled on whether it would violate the First Amendment to use the act to charge journalists.
A reporter's right to protect anonymous sources is also limited. The high court ruled in 1972 that reporters could be compelled to identify their sources, and in the past few years several reporters have been held in contempt for refusing.
On Capitol Hill the competing interests are also in play: Proposed legislation would criminalize the leaking of a broader swath of classified information; another proposal would shield reporters from revealing confidential sources and information, though not protect them from subpoenas. The most troubling development for the press may be Gonzales's suggestion that, for the first time, journalists could be prosecuted under the Espionage Act, which makes it a crime for unauthorized receipt and transmission of national defense information. "It's a law that has never been defined," says longtime investigative reporter Walter Pincus of the Washington Post. Though Gonzales has said that his focus remains on leakers, when asked during a recent television interview whether he foresees cases that prosecute journalists, he said that existing law would allow prosecution for publishing "certain kinds of classified information."
Strategy. Pincus says he would advise media advocates to work on getting that ambiguous 89-year-old act rewritten instead of pursuing shield laws whose protections are typically narrow. He has written extensively about the administration's use of the act to charge two pro-Israel lobbyists with receiving national defense information through conversations. It's a case that gives the willies not only to journalists but to lobbyists, academics, and others whose daily exchanges could lead to charges of receiving unauthorized national defense information.
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