FIRST AMENDMENT - GONZALES V PRESS - ARMANDO - KOS 5-22-06
PART I [quoteboxes not highlighted, see original for formatting - i.]
Attack on The Founders
by Armando
Mon May 22, 2006 at 07:06:45 PM EST
Part 1 of 2 on the attack on the First Amendment by the Bush Administration and the lackey Attorney General Alberto Gonzales. SusanG will post Part 2 shortly.
The inadequacy of Alberto Gonzales for the office of Attorney General has always been manifest. Yesterday, on ABC's Sunday program "This Week," he added alarmingly to that evidence:
"There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility," Mr. Gonzales said on the ABC News program "This Week." . . . "We have an obligation to enforce those laws. We have an obligation to ensure that our national security is protected."
Let us consider how high this Bush lackey is willing to jump in the destruction of our system of government. Before Gonzales, the Justice Department established a policy of not calling journalists as witnesses unless absolutely necessary:
Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.
These concerns are of no importance to Bush's lackey Gonzales. He now proposes the unthinkable - prosecution for speech. The history of our Nation not only counsels against such an attack on the freedom of speech and the press, it cries out against it.
The great leaders of the Nation since the foundation of our republic have always stated so. In New York Times v. United States (the Pentagon Papers case), Justice Hugo Black wrote:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.
. . . [T]he Government argues in its brief that in spite of the First Amendment, "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."
In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of "national security." . . . To find that the President has "inherent power" to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.
The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes - great man and great Chief Justice that he was - when the Court held a man could not be punished for attending a meeting run by Communists.
The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
More --
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In Times v. Sullivan, Justice Brennan, writing for the Court stated:
Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375 -376, gave the principle its classic formulation:
Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4 ; De Jonge v. Oregon, 299 U.S. 353
. . .[T]he lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, "if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress. . ., or the President . . ., with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States." . . . [T]he Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it
doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the `Alien and Sedition Acts,' passed at the last session of Congress . . . . [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto - a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates, supra, pp. 553-554.
Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form, under which the Crown was sovereign and the people were subjects. "Is it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: "In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . ." 4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government.
Now this Bush lackey, this Bush Administration of small men and women, mediocrities and incompetents, would now deign to correct giants like Madison, Hughes, Black, Brandeis, Holmes and Brennan. It is obscene. As Justice Potter Stewart remarked, I know it when I see it.
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PART II
Courage? Purpose?
by SusanG
Mon May 22, 2006 at 08:49:38 PM EST
Part 2 of 2 on the attack on the First Amendment by the Bush Administration and the lackey Attorney General Alberto Gonzales. Armando's Part 1 can be found here.
"In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly."
-- Justice Hugo Black, New York Times v United States
Until yesterday, watching the traditional media interact with the Bush administration for more than five years has been like watching a tennis match at a high-end country club. Sure, there's been a whiff here and there of an adversarial rivalry, but for the most part it's been limited to "tsk tsk" under-breath rebukes by the media of a competitor who increasingly steps over the line. Sharing membership in the DC cocktail crowd has limited journalists' criticism to polite, water-downed appeals to the small crowd of elite spectators. "This just isn't done," one can imagine reporters saying in undertones to each other in the bar after the sets are completed. "Bringing down the tone of the game," another agrees.
And then the attorney general leapt the net Sunday morning, knocked the press flat on its back and presented a bayonet to the throat: You publish leaks, we can prosecute you as spies. This is more than game, set, match. This is the media assuming it was playing a game while its adversary - an entrenched and secretive administration - was arming for war.
How the press reacts to this blatant strong-arming of First Amendment rights could be the most important test of civil courage and independence since major newspapers cooperated in publishing the Pentagon Papers in the face of injunctions 35 years ago.
(More on the flip)
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Given the paucity of official commentary from the big media players today, we can only hope they're locked in ten-hour meetings with the best attorneys in the country and not suffering some sort of disbelieving paralysis that the "civilized" way of doing things has been discarded. To most observers, it's been apparent for quite some time that extreme free speech suppression measures were in the works. When you're embedded deep in the game, I guess you just don't see it coming.
The simple fact is, the special privileges of the press were extended by the Founders with the understanding that journalists would act as mediating truth-tellers for the citizens of this nation. When government or corporations got up to no good, some blessed brave insider soul would hand off proof of skullduggery to the New York Times so that the hearings, investigations, trials and citizen ire could ensue. Of course, that's just what happened with the December NSA leak to the Times, and it's this process that the Bush administration once and for all wants to subvert with Gonzales' declaration yesterday.
The truth is, sources have always borne the greater risk in this symbiotic leaking game. They lose jobs, clearances, income, reputation, friends, sometimes family and often the classification of being sane, while reporters get to appeal to the public as martyrs, rarely do jail time - and when they do, come out of it with multi-million dollar book contracts (see Miller, Judith). Woodward and Bernstein hit a trifecta: Pulitzers, book and a movie. The whistleblowers themselves seem only able to dream of such rewards for their humbler, more dangerous role.
It is a precious right, this historical protection of the press, and one eminently worth fighting for to keep our democracy as transparent as possible. Now is the time to see if the current generation of media mavens are themselves up to the task of preserving their own constitutional privileges. If they are not, I predict the sources will continue to leak. Their risk, after all, is no greater after Gonzales' pronouncement yesterday than it was two weeks ago. If the big press players don't fight for this one, alternative media will surely rise to make their bones and publish like mad. Indeed, in the age of the Internet, the argument could be made that the role of mediator in getting information out there is anachronistic anyway. What's to prevent a modern-day Daniel Ellsberg from setting up a web site, getting it mirrored, making PDF's and posting away with glee (Craig Murray, in fact, did just that - and this in the face of Britain's harsh Official Secrets Act).
I would argue that some version of a gatekeeping/verifying body is desirable; otherwise, it would become frustratingly cumbersome to sort out the false claims from true. And I'm old-fashioned. I think the press, when it's living up to its ideological potential as it did during the Pentagon Papers and Watergate era, is the closest this country can probably come to having an objective, skeptical, researching agent to separate the kook with a grudge against a boss from the serious whistleblower.
But notice I said "desirable," not "necessary." If worse comes to worst, citizens will step up to do the chaff/wheat separation. It's not how we want to spend our time, but it will get done. What all of us who care about free flow of information should root for after Gonzales' statement yesterday are two things: first (and hopefully soon), a firm and defiant official response from the heads of news organizations declaring a firm "screw you" to the Bush administration, and second, that reporters get a clue and get off the tapped phone lines. Getting creative and wearing down some shoe leather to meet willing whistleblowers would do the whole profession a world of good.
Traditional media needs to understand that the largest part of blogospheric frustration is most certainly not that their representatives are overzealous in their pursuit of truth. We want them not only to have their constitutional privileges, we want them to use them far, far more. We don't in any way begrudge them this precious right, and we urge them to exercise it to the full. We've got their backs on this one, if they're willing to take a stand.
If they're not willing ... well, there are people at the gate, not just of the political system, but at the media barrier as well. And if the traditional press doesn't feel strongly enough about this to step up to the plate and fight for its rights, there are a lot of willing gatecrashers waiting in the wings, and patriotic sources will surely find them. Ignoring this salient fact could either be the death knell of traditional media or the spur that gets them back to their roots. Their choice.
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