Privacy SOS

Senators Brown, Lieberman and Ensign want to make (leaky) journalism illegal

As many journalists and media watchdogs have observed, the political class has a funny relationship to leaks to the media. On the one hand, high profile people routinely leak information to the press to further their own interests. Rahm Emanuel practically made a career of it while working as Obama's Chief of Staff in the White House. On the other hand, high profile people hate it when information they'd rather keep quiet sees the light of day. Of late, the Obama administration has been pursuing a near crusade against whistleblowing, including threats of imprisonment, extradition cases based on extremely tenuous legal footing, and targeted DOJ investigations. All of this comes from the most transparent administration in history, of course.

Questions about the validity of leaks have risen to the surface of late, but they are not unique to our political moment. In a truly worthwhile discussion on the subject, Richard Norton Smith told PBS' Jim Lehrer that the hypocritical, political use of and then assault on leaks extends throughout US political history. 

In Dwight Eisenhower's administration a classic example that presidents like leaks when they advance their interests and they don't like them when they do the opposite — early in his presidency Eisenhower summoned James Reston, the legendary New York Times correspondent, because he wanted to send a non-official signal to the Chinese Communists that the president's patience regarding the Korean peace talks was not infinite and indeed that under the worst circumstances Eisenhower might actually consider the use of nuclear weapons on the Korean peninsula. Reston wrote the story. He knew he was being used by the White House. He understood those were the terms of the relationship. The irony is that a few years later Reston wrote a story using a leak Eisenhower didn't like; Eisenhower complained, 'who the hell is Scotty Reston to tell me how to run the country'?

So what's different about the hysteria around leaks in light of Wikileaks?

Enter Senators Lieberman, Brown and Ensign. They want to make it illegal to publish leaked classified information. Note that it is already illegal to leak classified information; it's one of a few exemptions to First Amendment freedoms our system has largely consented to. Government workers don't have full access to the speech rights that the rest of us have; people in active duty military service must accept that their speech rights are likewise constrained. But importantly, and fundamentally, that is not true for the rest of us, including journalists, with very narrow exceptions. We, members of the public, have the right to say (almost) whatever we want.

But as usual, what's good for the goose isn't considered so good for the gander. Predictably, President George W. Bush considered prosecuting journalists under the Espionage Act, a terrible 1917 law with roots in the red scare that allows the government to criminalize some forms of speech. The US government has reportedly considered going after Wikileaks' Julian Assange using that statute

But Lieberman, Ensign and Brown want to take things a huge step further — or, more appropriately, backwards. They would have us live in a society wherein any journalist could be criminally prosecuted for publishing leaked, classified information. The bill, stupidly and transparently called "SHIELD", or Securing Human Intelligence and Enforcing Lawful Dissemination, is a blatant attack on our most basic democratic principles. It is an attack on the free press, and likewise, on democratic society. It would enable the government to lock up any journalist who prints leaked classified material. The statute therefore wouldn't stand up to a constitutional test, but we'd prefer not to get to the point where the Supreme Court must address that question. (We also have to ask: does selective prosecution of leaks have any relationship to politics?)

The bill doesn't seem to be moving anywhere fast, thank goodness. But keep it in mind, and know that we are facing a tripartite onslaught of anti-democratic legislation. It's not just censorship of online discourse and covert surveillance: elements among our political class are also out to destroy what's left of the freedom of the press in this country.

Don't let them.

(Note: the US has fallen to number 47 in press freedoms, according to Reporters without Borders.)

© 2021 ACLU of Massachusetts.