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Justice Department probe threatens First Amendment

Stop the presses -- or so that seems to be the ultimate goal of Justice Department efforts to seize the records of professional journalists.  

First, we discovered that the Justice Department had obtained two months’ worth of phone records from Associated Press journalists as part of a leak probe.  Now, The Washington Post reports that the Nation’s primary law enforcement agency has been tracking a Fox News reporter’s coming and goings from the State Department and has obtained a search warrant for the reporter’s personal emails.

To make matters worse, the FBI is reportedly making the unprecedented claim that the Fox journalist -- James Rosen -- broke the law by doing his job; namely, gathering information. No reporter has ever been prosecuted for soliciting information.  It may be a coincidence, but Rosen has also been questioning the administration’s handling of the attack on the US consulate in Benghazi, Libya.

The administration’s moves against political reporters strike at the core of the First Amendment’s guarantee of a free press.  The framers of the Bill of Rights put the rights of speech and press together with the rights “peaceably to assemble, and to petition the Government for a redress of grievances.” A citizen’s right to investigate, and even to criticize, the government is “the heart of what the First Amendment was meant to protect,” according to Justice Antonin Scalia.

The Obama administration claims that it is not censoring anyone, but is simply investigating potential security breaches -- as though that absolves federal prosecutors from First Amendment concerns.  The Founders realized that there was more than one way to chill free speech.  For them, the memory of the hated Stamp Act was still fresh. That 1765 law imposed a heavy tax on the sales and advertising revenue of colonial newspapers. The point of the law was to drive out of business the low-rent newspapers that tended toward sensational, rabble-rousing stories. Technically, the Stamp Act did not ban any newspaper but Americans understood it to be a gross violation of press freedom, and it became one of those British outrages that precipitated the independence movement.

When President John Adams signed the 1798 Sedition Act -- which empowered federal prosecutors to go after anti-government publications -- James Madison observed that the law violates the First Amendment, which requires not only that the press be free from “prior restraint,” but also “subsequent penalty of laws.”  In other words, a reporter who is trying to uncover facts about government affairs -- sensitive though they may be -- should not find himself at the receiving end of a federal witch hunt.  

According to The Washington Post, President Obama believes that press freedoms must be “balanced” against national security concerns.  On the surface, this sounds reasonable, but in practice, Obama’s approach to the media looks more and more like his “balanced” approach to deficit reduction, which calls for $6 in tax hikes for every $1 in spending cuts.  In fact, the Obama administration has prosecuted twice as many alleged “leakers” than all previous administrations combined.

The First Amendment says that the freedom of the press shall not be “abridged,” which means to limit or truncate something -- like the abridged version of a book. The amendment’s framers could easily have told Congress not to “eliminate” or “destroy” free speech; but instead they barred any diminution of free speech.  For the sake of the Constitution and the free press, it is time for the administration to live up to the letter of the First Amendment.

Adam Freedman covers legal affairs for Ricochet.  His latest book is The Naked Constitution: What the Founders Said and Why It Still Matters (Broadside Books).