On a day that my fellow blogger successfully exercised his First Amendment right to free assembly, I think it is ironic that I am moved to discuss the precarious position of one of our other so-protected rights, that 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.

No law may abridge the freedom of the press, or at least so states the Constitution. Today, however, journalists may find themselves reluctant to fully exercise their right as threats of prosecution begin to trickle out of the White House. According to the Times, the White House is exploring its options when it comes to prosecuting journalists and news organization that publish classified information. Clinging to the idea that the leaks that led to our knowledge of the CIA’s secret prisons in Europe and of the NSA’s warrantless wiretapping severely damaged our national security, the Administration is shifting its focus from rooting out the leakers to putting the journalists on trial:

the Bush administration is exploring a more radical measure to protect information it says is vital to national security: the criminal prosecution of reporters under the espionage laws.

Such an approach would signal a thorough revision of the informal rules of engagement that have governed the relationship between the press and the government for many decades. Leaking in Washington is commonplace and typically entails tolerable risks for government officials and, at worst, the possibility of subpoenas to journalists seeking the identities of sources.

But the Bush administration is putting pressure on the press as never before, and it is operating in a judicial climate that seems increasingly receptive to constraints on journalists.

This is highly significant not only because it raises the prospect of prosecuting journalists who were just bestowed with Pulitzer prizes but because of its effect on how our press operates. While Bush, supported by pre-1776 Constitutional theorist Alberto Gonzales, may see the press as obstinate and full of impunity, it is vital to the health of our nation that we are aware of what our government is doing. That this Administration would prefer its illegal actions kept under a veil of classification–as if secrecy bestows upon torture an aura of virtue–has no bearing on our right to know it and the press’s duty to broadcast it.

All it would take is one or two successful cases against journalists for the entire nature of our press to change. Threatening the press with prosection could very easily make journalists more timid in their investigations. Already, government officials in DC must be feeling more wary when talking with reporters (unless, of course, they are doing it at the behest of the Bush smear machine) out of fear of getting in serious trouble. Now journalists may feel the same:

“Once you make the press the defendant rather than the leaker,” said David Rudenstine, the dean of the Benjamin N. Cardozo School of Law in New York and a First Amendment scholar, “you really shut down the flow of information because the government will always know who the defendant is.”

[…]

Because such prosecutions of reporters are unknown, they are widely thought inconceivable. But legal experts say that existing laws may well allow holding the press to account criminally. Should the administration pursue the matter, these experts say, it could gain a tool that would thoroughly alter the balance of power between the government and the press.

I recall vividly speaking with Philo when the NSA scandal broke. He expressed concern that his emails to Tibet supporters around the world were now open to surveillance and that he would have to censure his expression to a certain extent. Philo’s 4th and 1st Amendment rights may or may not have been directly violated by the NSA program, but they were nonetheless curtailed as a result. The threat of previously unheard of consequences had a limiting effect which calls attention to the unconstitutionality of the program itself. The same is true of these threats by the White House.

The Administration is apparently drawing on two sources to justify its consideration of harsh tactics.

The administration’s position draws support from an unlikely source — the 1971 Supreme Court decision that refused to block publication by The Times and The Washington Post of the classified history of the Vietnam War known as the Pentagon Papers. The case is generally considered a triumph for the press. But two of the justices in the 6-to-3 majority indicated that there was a basis for after-the-fact prosecution of the newspapers that published the papers under the espionage laws.

[…]

The first, enacted in 1917, is, according to a 2002 report by Susan Buckley, a lawyer who often represents news organizations, “at first blush, pretty much one of the scariest statutes around.”

It prohibits anyone with unauthorized access to documents or information concerning the national defense from telling others. The wording of the law is loose, but it seems to contain a further requirement for spoken information. Repeating such information is only a crime, it seems, if the person doing it “has reason to believe” it could be used “to the injury of the United States or to the advantage of any foreign nation.” That condition does not seem to apply to information from documents.

[…]

A second law is less ambiguous. Enacted in 1950, it prohibits publication of government codes and other “communications intelligence activities.” Andrew C. McCarthy, a former federal prosecutor who took part in terrorism investigations in New York after the Sept. 11 attacks, said that both The Times, for its disclosures about the eavesdropping program, and The Post, for an article about secret C.I.A. prisons, had violated the 1917 law. The Times, he added, has also violated the 1950 law.

The Administration feels that it could win its cases in the court of law but I believe it would lose in the court of public opinion. Americans recognize the heavy hand of government censorship when they see it and would not approve of their news organizations being neutered thanks to an excessively broad reading of two laws. People understand that the clarity of the First Amendment must take precedence over cloudy statutes.

That said, jail time is real. Even if the statutes relied upon by the Administration are found unconstitutional, the flood gates of prosecution and the resulting fear would remain. Of course, that is exactly what this Administration is hoping for. They will happily lose a case or two and drop a few approval points if it means that they can operate their Orwellian campaigns in secrecy. To date they have baited impeachment on a number of issues because they have more faith in their abilities to obfuscate and deflect than they do in the People’s Branch or their friendly Court. Curtailing the freedom of the press is merely another tactic in their war on oversight, and one that becomes even more necessary with the prospect of a Democratic House next year. As the threats of oversight mount, expect Gonzales to lead the charge against sources of public information: Congress, the press, and government leakers.

Couple this with a toll-ridden information highway and you’ve got an America shielded from the truth. The mantle of President on George Bush is becoming every bit as ironic as when Pakistan’s Musharraf uses it.