Standing on the shoulders of the First Amendment, our press has performed several important functions throughout our history, including educating and informing the public about government actions and important issues of the day, and serving as a check against government abuse, waste and wrongdoing. A strong and vibrant press is essential in maintaining the marketplace of ideas central to our way of life.
Rather than rushing to judgment, we should await the disclosure of additional facts and be mindful of the Attorney General’s publicly stated assessment that the leak being investigated here is one of the most serious he has ever seen.
- Alberto Gonzales, Former U.S. Attorney General
Occasionally the interests of the press and our criminal justice system collide, as in the recent revelation that the Department of Justice collected communications records of reporters and bureaus of The Associated Press in order to discover information about an unlawful leak of classified information. Reportedly, the leak in 2012 involved details about a foiled bomb plot targeting an American aircraft.
When such interests are in conflict, significant policy objectives have to be balanced. On the one hand is a significant First Amendment interest in maximizing information to the public about an important national security operation that saved lives. On the other hand is the criminal justice system’s interest in protecting classified national security information by the prosecution of a criminal leak, thus reinforcing our commitment to the rule of law.
Some believe that because of the press’s historical role in our society, it should enjoy special protections and privileges not available to other citizens, groups and organizations. However, while some lower federal courts have recognized a qualified media privilege in certain circumstances, the U.S. Supreme Court has thus far declined to afford special treatment to the press other than requiring government investigations to be narrowly focused.
Nevertheless, respectful of the role of the press, the Attorney General has issued clear guidance to investigators and prosecutors when investigations involve the press. Generally, this guidance limits government action unless it is approved at the highest level of the Department; there is a compelling interest of the government in obtaining the information; there is no alternate source for the information; and the scope of the collection is no broader than necessary.
The broad sweep of the collection activities in question here have raised serious and legitimate concerns about the Department’s avowed commitment to a free and robust press. However, rather than rushing to judgment, we should await the disclosure of additional facts and be mindful of the Attorney General’s publicly stated assessment that the leak being investigated here is one of the most serious he has ever seen. Hopefully, the Department has reached an appropriate balance, thus protecting our national security as well as respecting the promise of the First Amendment.
Alberto R. Gonzales is the former U.S. Attorney General and White House Counsel in the George W. Bush Administration. Presently he is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.