[Media]

Freedom of the Press

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Last November, the Washington Post's Dana Priest broke a remarkable story. Thanks to information she received from inside the CIA, she learned that the US had established an international covert prison system where it detained and, presumably, tortured prisoners. It was the first report of the so-called "black sites." Last week, she won a Pulitzer for the story and coincidentally, the alleged leaker, Mary McCarthy, was fired by the CIA.

Journalists considered this one of the biggest stories of the year, and I assume most foreign-policy reporters were green with envy. But jackboot types from the administration felt exactly the opposite: this was tantamount to treason. (Nevermind that the "black sites" are illegal, unamerican, and morally reprehensible.) Even as the story was breaking, the White House threatened Priest that she might have to disclose her sources.

Recall also that four reporters were indicted for having been leaked information in the Valerie Plame incident--and that the administration used the occasion to threaten other journalists that their rights to protect their sources was something less than they imagined.

So what are a reporter's rights? The First Amendment specifically gives a right of speech to the press, but also to individuals. Is the press's right special? Does this right of speech also protect their sources?

The answer is ... well, it isn't final--various court decisions have pushed the boundaries around over the course of time. There's every reason to believe it will continue to move. That the Constitution specifically distinguishes between rights of press and individuals speaks to exclusive rights.

For the press, this generally means that the government can't prevent publication of stories, force publication of other stories (propaganda), or impose penalties for stories about which it disagrees. These are mostly settled. Less settled is the question of reporters' sources. In 1972, the Supreme Court actually ruled that reporters have no such privilege to protect their sources, though what followed was a series of lower-court rulings that did seem to create such a privilege:

Most significantly, in 1972 in Branzburg v. Hayes, a sharply divided Court was skeptical of the contention that the First Amendment protects journalists from the compelled disclosure of the identities of their confidential sources, at least in the context of a grand-jury proceeding. The Court, however, has not addressed that issue in the 30 years since Branzburg, and has effectively permitted the lower courts to fashion an impressive body of law grounding just such a “reporter’s privilege” firmly in the press clause itself. That privilege, however, is by no means absolute and may be forfeited in a variety of circumstances, especially when no confidential source is thereby placed in jeopardy or when disclosure is sought in the context of a grand-jury or other criminal proceeding.

Branzburg is exactly where the Bushies have lately tried to find some footing. Which isn't the least bit surprising--as secretive as they are, and as many dubiously legal and outright illegal acts as they've committed, it's little wonder they'd like to stem pesky reporters' inquiry. However, the White House may well have overplayed its hand. The very crimes committed by Bush--like the black sites discovered by Dana Priest--undermine his case; they argue for an expanded right to inquiry, perhaps a more established right to protect sources. And perhaps this is why, in the final analysis, the White House backed off its threats to go after Dana Priest.