As published in New York Law Journal
Tuesday, May 30, 2006
COMMUNICATIONS AND MEDIA LAW

BY JAMES C. GOODALE

Bush’s War Against the Press

If it wasn’t clear before that President George W. Bush has declared war on the press, it is now. 

  • Two reporters in San Francisco are facing possible jail time for refusing to disclose their source for a series of articles in 2004 about the “baseball” steroid investigation 
  • Attorney General Alberto Gonzales has suggested he is “seriously” considering indictment of The New York Times 
  • The FBI is reported to have been tapping reporter’s phones 
  • The FBI is seeking 20-year-old classified documents from the estate of Jack Anderson
  • The government is seeking to turn an 89-year-old law, The Espionage Act, into an official secrets act 
This is a chilling list.  It is hard to believe it is coincidental.

Appearing on ABC’s “This Week” on May 21, 2006, Attorney General Gonzales stated the administration’s objectives:  It will indict the press if necessary and send its reporters to jail when the administration thinks it’s appropriate.   

The New York Times won a Pulitzer Prize for publishing a story on the National Security Agency’s (NSA) domestic wiretapping program.  The Times got the story from a leak.  Mr. Gonzales believes there is a law on the books that makes that publication criminal.

The law in question, §798 of the US Code, primarily criminalizes the publication of codes.  The Times did not publish codes.  This law does not mention the First Amendment.

Under the First Amendment, Mr. Gonzales’ interpretation of this law would be unconstitutional.  It would have to show a publication “will surely result in direct, immediate, and irreparable damage to our Nation or its people.”

Mr. Gonzales could not meet that test in the NSA leak case.  He is apparently not a friend of the First Amendment.

Previous attorneys general recognized the First Amendment.  Generally, they would not permit federal prosecutors to subpoena reporters for their sources.

The Justice Department set out guidelines many decades ago to prevent such subpoenas.  Attorney General Gonzales has made all but a dead letter of these guidelines.

He personally authorized federal prosecutors to subpoena two reporters from The San Francisco Chronicle.  He wants to know who the source was for their stories on steroids in baseball.

The government indicted four officers and affiliates of the Bay Area Laboratory Co-operative  in 2004 for providing the steroids to athletes.  Later the Chronicle published a story about steroid use based in part on the indictment and grand jury transcripts.

The government made these transcripts available to defense lawyers in the case and later to congressional committees.  The story of athletes using steroids became a national scandal.

The leak was over two years ago.  Everyone knows what the story is.  The public has benefited from the story.  Major League Baseball now takes the issue of steroids seriously.

One suspects the real reason to threaten reporters with jail sentences and to threaten The New York Times with an indictment is that this administration wishes to criminalize the newsgathering process. 

To aid its war against the press, the administration has effectively created an official secrets act.

In England, any communication or publication of classified information is a crime under its Official Secrets Act.  It is not a crime here because of the First Amendment.  The United Kingdom has no First Amendment.

Congress passed an Official Secrets Act of sorts in 2000.  President Bill Clinton vetoed it because of the First Amendment.

Bureaucrats classify more than they should.  It is estimated that as many as 200 pages of the Pentagon Papers, classified as “secret,” were reprints of The New York Times. 

The First Amendment protects publication of over-classified material.  Otherwise administrations could cover up malfeasance with a classification stamp.

Without a law to cover leaking, President Bush’s administration has invented one: The Espionage Act of 1917.  This law does not cover leaking or publication.  Its legislative history is clear.   Congress, in 1917, intentionally did not cover the press.

Nonetheless, the present administration is attempting to convert it into an official secrets act.  It is prosecuting a lobbyist under it (The Aipac Case).  It has threatened to use it against newspapers. 

If the lobbyist is convicted, it could be a bad precedent for publications.  The lobbyist did not commit espionage.

The apparent irrelevance of The Espionage Act to leaking has made the presiding Judge in Aipac uneasy.  He has set a hearing to determine whether it is constitutional.

ABC reporters have said their phones are tapped.  In his ABC interview, Mr. Gonzales did nothing to dispel the view that he will tap reporter’s phones under the appropriate circumstances.  But his idea of appropriate circumstances is  significantly broader than what the Constitution allows.

A generation ago, President Richard Nixon’s administration attacked the press as “nabobs of negativism.”  It attempted to haul The New York Times’ reporter Earl Caldwell before the grand jury to discover his sources. 

It tried to stop publication of The New York Times under The Espionage Act.  It tapped the phone of New York Times reporter Hedrick Smith.

It never succeeded in getting Mr. Caldwell’s sources despite a limited victory in the case (later known as Branzburg).

It never made an effort to call Mr. Caldwell back before the grand jury.  And from the corpse of the Branzburg case the press created a reporter’s privilege recognized in 49 states.

The government’s loss in the Pentagon Papers  case, some think, greased the skids for President Nixon’s eventual resignation.

Perhaps there is a lesson to be learned.  A war against the press in the long run will not pay off.
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James C. Goodale is the former vice chairman of The New York Times and producer/host of the television program ”Digital Age.”