“We consider this case against the background of a profound national commitment to the principle that debate on public issues…may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (New York Times Co. v. Sullivan, (1964))
(Originally published in Los Angeles Lawyer magazine, by Stephen F. Rohde) The aftermath of the 2016 presidential election has reignited a volatile constitutional issue as old as the republic itself: the role of a free press under the First Amendment to scrutinize the chief executive. Some may believe (incorrectly) that there has never been a greater conflict between an American president and the fourth estate than exists today. On his first day in office, President Donald J. Trump called journalists “among the most dishonest human beings on earth” and a month later he tweeted that the “FAKE NEWS media” is the “enemy of the American people.”1 At a rally in Phoenix in August, Trump vowed to “expose the crooked media deceptions” and accused the press of “trying to take away our history and our heritage.”2
These confrontations prompt an examination of the relationship between the American presidency and the press. Viewed from a historical and constitutional perspective, is what President Trump has said and done unprecedented among the pantheon of U.S. presidents? Does the President’s posture pose a “clear and present danger” to the First Amendment? Or is it yet another in a long line of public debates about how best to serve the interests of the nation? What can we learn from the present debate within a historical context about democratic processes, particularly with respect to how the executive and judicial branches interpret the First Amendment?
The political thinkers who founded America designed a government to serve as a barrier against the tyranny they had experienced under King George III and the history of European despots they knew only too well. They understood that a government based on popular sovereignty needed to guarantee fundamental rights and that high among them was freedom of the press. In fact, foreshadowing the Declaration of Independence, on June 12, 1776, the Virginia House of Burgesses adopted the Virginia Bill of Rights, which declared those rights that pertain to “the good people of Virginia” and “their posterity as the basis and foundation of government,” including that “the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.”3
The First Amendment
After winning independence, the founders convened in Philadelphia from May to September 1787 to debate and draft a new constitution. The challenge they faced was how to construct a strong national government with a president in charge without sacrificing personal freedoms. Charles Pinckney of South Carolina warned that “the Executive” might become “a Monarchy, of the worst kind, to wit an elective one.”4 Eventually, Edmund Randolph of Virginia refused to sign the Constitution because he could not “promote the establishment of a plan which he verily believed would end in Tyranny.”5 George Mason, the author of the Virginia Bill of Rights, joined Randolph in refusing to sign the proposed Constitution, declaring that the “power and structure of the Government” would “end either in monarchy, or a tyrannical aristocracy,” unless it were amended to include a Bill of Rights.6 Among those rights Mason first listed “the Liberty of the Press.”7
While not a delegate to the Constitutional Convention, Thomas Jefferson took great interest in the proceedings. In his famous December 20, 1787, letter to James Madison, Jefferson argued that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference,” listing “freedom of the press” among the most cherished of rights.8 Samuel Osgood, a Massachusetts Antifederalist, feared that the people would have “very little Knowledge” of “Bribery and Corruption, & and an undue Use of the public Monies” in the national capital without a Bill of Rights protecting “Liberty of Speech, of the Press, of Religion, &ca.”9
Madison, as astute a politician as he was a student of history and government, heard these Antifederalist voices of opposition loud and clear. He promised that if the Constitution were ratified (and he was elected to Congress), he would introduce a Bill of Rights. He got his way and he kept his promise.10 As he introduced proposed constitutional amendments to the first Congress, Madison described freedom of the press as one of the “choicest” of the “great rights of mankind.”11 His first draft of what would become the First Amendment submitted on June 8, 1789, declared that “the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”12 Eventually, through the legislative process and ratification, those who feared the possibility of an American tyranny won the debate, and the Bill of Rights became the law of the land on December 15, 1791, with the First Amendment as the crowning achievement, guaranteeing fundamental rights, including freedom of the press.
No one can study this history without understanding how profoundly the founders feared that a powerful national government headed by a powerful executive could become “a Monarchy, of the worst kind, to wit an elective one.” They demanded and secured through the First Amendment the best defense against tyranny in the form of a robust, uninhibited press. According to constitutional scholar Leonard W. Levy, freedom of the press meant “the right to criticize harshly the government, its officers, and its policies as well as to comment on matters of public concern.”13 By freedom of the press, “the framers meant a right to engage in rasping, corrosive, and offensive discussions on all topics of public interest” including even “foul-tempered, mean-spirited expression.”14 The very existence of personal liberties depended on “the vigilance of the press in exposing unfairness, inequality, and injustice” and consequently, freedom of the press “had become part of the matrix for the functioning of popular government and the protection of civil liberties.”15 The challenge was whether this grand design would work in practice.
Alien and Sedition Acts of 1798
The ink was barely dry on the Bill of Rights, when our second president, John Adams, signed the infamous Alien and Sedition Acts of 1798.16 These repressive measures were adopted in an atmosphere, similar to the present, of heightened nationalism, intolerance of foreigners, and fear of impending war (back then with France). Among various nativist provisions, these acts made persons from “enemy” nations ineligible for naturalization. For those enemy aliens already here, the laws authorized their deportation if they were deemed “dangerous to the peace and safety of the United States” and their indiscriminate incarceration or expulsion by presidential executive order during wartime.17
Under the Sedition Act, which encompassed citizens and noncitizens alike, persons were prohibited from assembling “with intent to oppose any measure…of the government,” and it was illegal for any person to “write, print, utter, or publish…any false, scandalous, and malicious writing” against the government, Congress or the President, “with the intent to…bring them… into contempt or disrepute; or to excite against them…the hatred of the good people of the United States.”18 Adams justified the law because he claimed the opposition Republican press went to “all lengths of profligacy, falsehood and malignity in defaming our government,” and demanded that the “misrepresentations which have misled so many citizens…must be discountenanced by authority.”19 Adams wielded the Sedition Act as a partisan weapon. In a period described by Jefferson as “the reign of witches” (although “witch hunt” might better describe it), the Adams administration issued 14 indictments under the act—all against supporters of the opposition Republican Party, including four of the five most influential Republican journals, two of which were forced to fold. Several others suspended operations while their editors languished in jail.20
Adding to its partisanship, the Sedition Act by its terms expired on March 3, 1801, Adams’s final day in office. When Jefferson was sworn in the next day, he sought to contrast himself with his predecessor. In his first inaugural address, he pointedly reminded his audience that while “the will of the majority is in all cases to prevail,” the “minority possesses their equal rights, which equal law must protect and to violate would be oppression.”21 He famously declared, “We are all Republicans, we are all Federalists” and said of those who would express differing opinions, “let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.” Among the “essential principles of our Government,” upon which Jefferson intended to base his administration, he began with “[e]qual and exact justice to all men, of whatever state or persuasion, religious or political,” and went on to name “the diffusion of information and arraignment of all abuses at the bar of the public reason; freedom of religion; [and] freedom of the press.” Jefferson subsequently pardoned all those who were convicted under the acts.
In a lesson overlooked by future presidents at their peril, the Alien and Sedition Acts, designed as an expedient political measure, ultimately backfired. Federalists at all levels were rejected, and the party soon ceased to exist. In 1840, Congress repaid all fines levied under the Sedition Act, declaring that the act had been a “mistaken exercise” of power.22
Lincoln and Disloyal Speech
A month before Abraham Lincoln was inaugurated president, six states had seceded from the United States and established the Confederacy. The country was deeply divided. In the summer of 1861, in what historian Harold Holzer calls the “Salem Witch” hunt of the Civil War, some 200 newspapers and their editors were subjected to scattershot menacing by agencies of Lincoln’s government, civilian mobs, and Union soldiers. Several editors of papers aligned with the opposition Democratic Party were imprisoned at Fort Lafayette in Brooklyn, which became known as the “American Bastille.”23
On September 24, 1862, Lincoln suspended the writ of habeas corpus nationwide.24 Among the estimated 13,000 to 38,000 imprisoned by military authorities, many, including several journalists, were arrested for expressing their political beliefs.25 By May 1863, when Lincoln learned after the fact that his critics were being arrested merely for say ing things like, “anyone who enlists is a God Damn fool” or that “not fifty soldiers will fight to free Negroes,” and a newspaper editor in St. Louis had been arrested, Lincoln instructed military officials that “unless the necessity” for such arrests is “manifest and urgent,” they “should cease.”26 According to historian Geoffrey Stone, Lincoln “did not act decisively to prohibit such arrests” but instead deferred “to his military commanders, and allowed the arrests for seditious speech to continue.”27
Throughout the Civil War, an estimated 300 Democratic newspapers were shut down by military authorities—at least for brief periods—for expressing sympathy for the enemy. Meanwhile, emboldened by what they saw their government doing with impunity, Union soldiers and vigilante citizens attacked newspaper offices and editors. On one occasion, the editor of the Essex County Democrat was dragged from his home, covered with a coat of tar and feathers, and ridden through town on a rail.28
In 1864, during his bid for a second term, Lincoln was faced with a real case of “fake news.” A document falsely attributed to Lincoln pretended he was proclaiming a national day of “fasting, humiliation and prayer” and calling up 400,000 new troops. Armed with broad wartime powers, Lincoln ordered the arrest and imprisonment of the editors of the fraudulent proclamation.29 By and large, however, Lincoln exhibited a thick skin, even when newspapers accused him of be ing “that compound of cunning, heartlessness and folly” and castigated him as a “despot,” “liar,” “usurper,” “thief,” “monster,” “perjurer,” “ignoramus,” “swindler,” “tyrant,” “fiend,” “butcher,” and “pirate.” According to Stone, “Lincoln was the most excoriated president in American his tory.”30 (At least until now, according to some contemporary critics.)
The Censorship of Dissent
Unlike Lincoln, President Woodrow Wilson had little tolerance for criticism. Once he decided to abandon his policy of neutrality in the Great War and seek a declaration of war, he ominously warned that “if there should be disloyalty, it will be dealt with a firm hand of stern repression” since disloyal individuals “had sacrificed their right to civil liberties.”31 Three weeks after Congress declared war, it began debating the proposed Espionage Act of 1917. When opposition grew to provisions that would authorize press censorship, Wilson appealed to Congress arguing that the “authority to exercise censorship over the press…is absolutely necessary to the public safety.” But in a rare show of independence, Congress refused Wilson’s entreaties and rejected those provisions.32 Nevertheless, Wilson largely got his way and the final Espionage Act33 included a provision authorizing the postmaster general to exclude material from the mails “advocating or urging treason, insurrection or forcible resistance to any law of the United States.”34
In one of the most notorious prosecutions of the war, Postmaster General Albert Burleson ordered the August 1917 issue of The Masses excluded from the mail. The Masses was a monthly journal of socialist politics featuring prominent writers including Max Eastman, John Reed, Vachel Lindsay, Emma Goldman, Carl Sandburg, and Bertrand Russell.35 The Masses immediately went to court and won a temporary injunction from U.S. District Judge Learned Hand who ruled that the law could not be construed to allow “the suppression of all…criticism, and all opinion except what encouraged and supported the existing policies.”36
Judge Hand found that the antiwar articles and cartoons in The Masses magazine “are all within the range of opinion and of criticism” and “fall within the scope of that right to criticize either by temperate reasoning, or by immoderate and indecent invective, which is normally the privilege of the individual in countries dependent upon the free expression of opinion as the ultimate source of authority. The argument may be trivial in substance, and violent and perverse in manner, but so long as it is confined to abuse of existing policies or laws, it is impossible to class it as a false statement of facts of the kind here in question.”37
As far as whether The Masses willfully caused “insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States,” Judge Hand found it would interpret the word “cause” too broadly to include “all hostile criticism, and of all opinion except what encouraged and supported the existing policies, or which fell within the range of temperate argument. It would contradict the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.”38
The U.S. Court of Appeals for the Second Circuit reversed Judge Hand on the grounds that whether or not the court was satisfied that The Masses contains “matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States,” or “involves an attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces” or “willfully to obstruct the recruiting or enlistment service…the case would be governed by the principle that the head of a department of the government in a doubtful case will not be overruled by the courts in a matter which involves his judgment and discretion, and which is within his jurisdiction.”39
The case was not appealed to the Supreme Court, and within a few days of the court of appeal decision seven of The Masses’ editors and staff were indicted for conspiracy to violate the Espionage Act. By the end of the year, The Masses had ceased publication.40
During the war, the Wilson Administration prosecuted more than 2,000 dissenters on charges of disloyal, seditious, or incendiary speech and writing.41 For example, in Shaffer v. United States,42 Frank Shaffer was convicted for mailing copies of a book, The Finished Mystery, which argued that the “war itself is wrong” and that “its prosecution will be a crime.” The Reverend Clarence H. Waldron was sentenced to 15 years in prison for distributing a pamphlet questioning whether Christians are forbidden to fight in war.43
Despite these prosecutions, Wilson pushed for even more authority to punish “disloyal” speech. Congress readily obliged with the Sedition Act of 1918,44 which forbade any person, “when the United States is in war,” to utter or write any “abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States.”45 Wilson’s Justice Department aggressively enforced the new law. In the most notorious prosecutions, a newspaperman,46 a pamphleteer47 and even prominent Socialist Eugene Debs48 were convicted and sent to jail for criticizing the government. At first, even enlightened jurists like Supreme Court Justices Oliver Wendell Holmes, Jr. and Louis Brandeis joined in upholding each of these convictions.49 Within a few months, however, they changed their minds. In words that would come to be seen as a damning epitaph for Wilson’s systematic violation of freedom of speech and the press, in one of the most influential dissents in the Court’s history, which Brandeis joined, Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market….”50 Indeed that is the theory—”the experiment”—of our Constitution.51 “While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions we loathe and believe to be fraught with death….”52
Indeed, more than a century after Congress righted the wrong created by the Alien and Sedition Acts, in the seminal First Amendment case of New York Times v. Sullivan, the U.S. Supreme Court declared, “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”53 In 1964 the Supreme Court was called upon to review a $500,000 libel judgment which L.B. Sullivan, the Montgomery Alabama city commissioner, had won against a group of civil rights leaders who had taken out a full-page ad in The New York Times, criticizing Sullivan for his actions against Dr. Martin Luther King Jr. and other civil rights activists.
Speaking for the majority of the Court in reversing the judgment, Justice William J. Brennan Jr declared in words that have come to represent a cornerstone of First Amendment law when it comes to the role of the press in criticizing elected officials: “[There is] 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.”54 It is against this “profound national commitment” that the current attacks on the press from the high est office in the land need to be judged.
Nixon and the Pentagon Papers
It was Republican President Richard M. Nixon, however, not Trump, speaking to the Joint Chiefs of Staff in 1972, who first charged that the “press is the enemy.” Nixon’s hostility to the press was legendary and culminated in his failed attempt to impose an unconstitutional prior restraint on the publication of the Pentagon Papers. From the earliest days of his career, Nixon blamed the press for his political setbacks. When he lost the 1962 gubernatorial race in California, he famously (but incorrectly) told the press they would not “have Nixon to kick around anymore.” Amid fears that Apollo 11 astronauts had returned from the moon with deadly germs, Nixon told a foreign leader he would like to send “contaminated” moon rocks to his critics in the press.55 During the Watergate scandal, it was revealed that Nixon kept an “enemies list” of his political opponents, including Daniel Schorr, an Emmy award-winning journalist for CBS News, who had been secretly investigated by the FBI during the Nixon Administration.56
Writing for The Atlantic during the height of the Nixon years, journalist David Wise argued that Nixon saw television as a “conduit” to deliver his message to the public, not as an independent form of “electronic journalism.” According to Wise, the “moment that television analyzes his words, qualifies his remarks, or renders news judgments, it becomes part of the ‘press,’ and a political target.”57 By applying “constant pressure, in ways seen and unseen, the leaders of the government have attempted to shape the news to resemble the images seen through the prism of their own power.”58
Nixon’s most overt exercise of presidential pressure to shape the news came in 1971, during the Vietnam War, when he sought to restrain The New York Times and the Washington Post from publishing the Pentagon Papers, a history of American involvement in Vietnam from 1945 to 1967 prepared by the U.S. Department of Defense. Citing the Espionage Act, Nixon claimed executive authority to force the newspapers to suspend publication of any classified information to prevent alleged “irreparable injury to the defense interests of the United States.”59
On June 30, 1971, in a historic 6-3 decision in New York Times v. United States, the U.S. Supreme Court rejected Nixon’s arguments and upheld the right of the newspapers to publish the Pentagon Papers.60 In his concurring opinion, Justice Hugo Black wrote that 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 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.”61 As Justice Black saw it, in “seeking injunctions against these newspapers…the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment,” which entrusted a free press with “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.”62 Justice Black insisted that 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.’”63 Likewise, Justice William O. Douglas noted that the “dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information.”64
Justices Potter Stewart and Byron White reminded us that in: [T]he absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vit ally serves the basic purpose of the First Amend ment. For without an informed and free press there cannot be an enlightened people.65
The justices’ forceful admonitions that under the First Amendment the press had a duty to hold presidents and other elected officials accountable would prove prescient, since less than a year later, Nixon’s presidency would be brought down by the Watergate scandal, in which the press played its vital role in baring the secrets of government, informing the people, and exposing Nixon’s deceptions.
Television news anchor Walter Cronkite was convinced that the Nixon administration attacked the news media “to raise the credibility of the Administration. It’s like a first-year physics experiment with two tubes of water—you put pressure on one side and it makes the other side go up or down.”66 History has shown that Nixon lost that experiment.
The Current Climate
There is no evidence that President Trump has seriously studied the presidencies of Adams, Lincoln, Wilson, and Nixon, in general, or the damaging consequences of their hostility toward freedom of the press, in particular. Ignoring the cautionary tales posed by these four presidents, any successor, including Trump, runs the risk of repeating their mistakes apparently oblivious to the fact that in each case the judgment of history condemned their unwarranted attacks on the press.
In this climate of concern about First Amendment issues and freedom of the press, in particular, within days of Trump’s inauguration, Stanford University gathered several of its leading scholars to discuss the new president’s relationship with the media.67 James Hamilton, professor of communications and director of the Stan – ford Journalism Program, noted that the disdain for the press President Nixon expressed in private is “exactly the type of vitriol that Trump uses in public.”68 On his first full day in office, Trump said in an address to the CIA, “I have a running war with the media. They are among the most dishonest human beings on Earth.”69 According to Hamilton, the belief that the media is the enemy was the undoing of Nixon, and the “danger for the Trump administration is that a similarly callous view of democratic institutions can ultimately lead to violations of laws, including those govern ing conflicts of interest.”70
“[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….”—Justice Hugo Black.
As another participant, Theodore Glasser, also a professor of communications, sees it, an “oppositional press—an adversarial press—is a vitally important tradition in American politics” because “the job of the journalist…is to create and sustain the public conversation democracy demands.”71 For Hamilton, the media’s job today is clear: “Give people an accurate picture of government actions, show your work and make it transparent about how you verified your facts, and be willing to risk ridicule and censure and surveillance and arrest by public officials who prefer supremacy to scrutiny.”72
Will the press serve as the bulwark the founders intended against a potentially tyrannical executive? Will it “criticize harshly the government, its officers,” and “engage in rasping, corrosive, and offensive discussions on all topics of public interest.”73 The very existence of personal liberties depends on “the vigilance of the press in exposing unfairness, inequality, and injustice.”74
In December, 2016, a New York Times article predicted that if “Donald J. Trump decides as president to throw a whistle-blower in jail for trying to talk to a reporter, or gets the FBI to spy on a journalist, he will have one man to thank for bequeathing him such expansive power: Barack Obama.”75 During the Obama administration, in addition to the much-publicized prosecutions of Edward Snow den76 and Chelsea Manning,77 the Department of Justice brought charges against six other people accused of leaking information to the media—Thomas Drake, Shamai Leibowitz, Stephen Kim, Jeffrey Sterling, Donald Sachtleben, and John Kiriakou.78
Thomas Drake, a senior executive at the National Security Agency, who started his job on September 11, 2001, repeatedly complained about waste and lack of privacy protections at NSA.79 In 2005, he allegedly started talking to Siobhan Gor man, a reporter for The Baltimore Sun, and provided her with unclassified documents for a story detailing how the NSA wasted hundreds of millions of dollars on a spying program that infringed on Ameri – cans’ privacy. In 2010, a grand jury formally indicted Drake under the Espionage Act, not for providing classified information to anyone, since he only shared unclassified information with Gorman, but for taking a few classified documents home. Just before the case was set to go to trial in June 2011, the DOJ dropped all charges in exchange for Drake’s pleading guilty to a misdemean or.80
A month after Drake was originally indicted, Shamai Leibowitz, a linguist at the FBI, was accused of leaking information to blogger Richard Silverstein.81 Charged under the Espionage Act, he took a plea deal in 2009 and was sentenced to 20 months in prison. Leibowitz said he had provided Silverstein with evidence that the FBI “was committing illegal acts,” and Silverstein later revealed that Leibowitz had given him transcripts of secretly wiretapped conversations at the Israeli embassy in Washington, D.C.82
Stephen Kim was a State Department contractor accused of leaking information about North Korea’s nuclear program to Fox News reporter James Rosen in 2009.83 After fighting the case for years, Kim took a plea deal in 2014 and was sentenced to 13 months in prison.84
Jeffrey Sterling, a former CIA agent, was accused of leaking information about the CIA’s botched attempts to disrupt Iran’s nuclear program to New York Times reporter James Risen in 2005.85 In 2011, as the Obama administration ramped up its war on leakers, Sterling was indicted under the Espionage Act. In 2015, Sterling was convicted of violating the Espionage Act and sentenced to three and a half years in prison.86
Donald Sachtleben, a former FBI agent, was accused of confirming information about a foiled terrorist plot in Yemen to Associated Press reporters in 2012 after the DOJ secretly seized two months’ worth of AP reporters’ work phone, cell phone and home phone records.87 News outlets and journalism groups condemned this invasion of journalists’ privacy, and Attorney General Eric Holder later agreed to adopt new internal DOJ regulations limiting when the department could seize reporters’ communications. Sachtleben pleaded guilty in 2013 to violating the Espionage Act.88
In addition to charging journalists’ sources under the Espionage Act, both the Obama and Trump administrations have explored the possibility of using the law directly against journalists. In 2010, as part of its investigation into Stephen Kim in 2010, Obama’s DOJ obtained a search warrant for Fox News reporter James Rosen’s private e-mail. In an affidavit supporting the search warrant, an FBI agent accused Fox News reporter Rosen of conspiring to violate the Espionage Act. “There is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. § 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim,” FBI special agent Reginald Reyes wrote in an affidavit, shocking freedom of press groups at the time.89
John C. Kiriakou was the first CIA officer to be imprisoned for leaking classified information to a reporter and served nearly two years in federal prison in Pen Pennsylvania.90 As a CIA analyst and a counterterrorism officer from 1990 to 2004,91 he helped lead the operation that captured Abu Zubaydah, an alleged Al Qaeda militant. In a 2007 interview with ABC News, Kiriakou became the first former CIA official to publicly discuss the agency’s use of waterboarding, a suffocation technique with a prominent place in the history of torture. Documents later showed that other CIA operatives subjected Abu Zubaydah to waterboarding 83 times.92
Kiriakou was charged in 2012 with disclosing classified information to journalists.93 In a plea deal, he later admitted to one of the leaks, viz. he had disclosed the name of an undercover CIA officer to a freelance journalist, Matthew Cole, though Cole did not publish the name. Kiriakou has been embraced as a whistle-blower by civil liberty advocates and government critics who say he was punished for speaking out about CIA torture.94
“I have maintained from the day of my arrest that my case was never about leaking,” he said. “My case was about torture. The CIA never forgave me for talking about torture.” He said he felt vindicated when Senator Dianne Feinstein of California, as chairwoman of the Senate Intelligence Committee, denounced the CIA’s former interrogation program and described the committee’s 6,000-page report that said it was mismanaged and ineffective.95
Obama argued that the number of leak prosecutions his administration had brought was small and that some of the cases were inherited from the George W. Bush administration. But he asserted that some involved purposeful leaks of information that allegedly could harm or threaten operations or individuals who were in the field.96 However, in a 2013 report for the Committee to Protect Journalists, Leonard Downie, former executive editor of the Washington Post who now teaches at Arizona State University, said Obama’s war on leaks and other efforts to control information was “the most aggressive I’ve seen since the Nixon administration, when I was one of the editors involved in the Washing ton Post’s investigation of Watergate.”97
“Obama has laid all the groundwork Trump needs for an unprecedented crackdown on the press,” said Trevor Timm, executive director of the nonprofit Freedom of the Press Foundation. It is asserted that large-scale leaks by former U.S. Army soldier Manning and later by NSA subcontractor Snowden, prompted the Obama administration to adopt a zealous, prosecutorial approach toward all leaking.98 According to Risen, press freedom advocates are fearful that if a Trump DOJ continues to aggressively pursue journalists and their sources, it is because “Obama handed him a roadmap.”99
Peter Sterne, Senior Reporter for the Freedom of the Press Foundation, has stated that “the Espionage Act prosecutions of journalists’ sources have continued under the administration of President Donald Trump and only look to get worse.”100 Trump has, on an almost weekly basis, called for leak investigations into news reports about his administration and Attorney General Jeff Sessions has indicated that the DOJ wants to increase the prosecution of journalists’ sources. “We are going to step up our efforts and already are stepping up our efforts on all leaks,” Sessions said in April 2017, adding that he wants to put “some people in jail” for disclosing classified information.101
As the founders understood and subsequent history has tragically confirmed, discrediting and stifling the press and abandoning the truth are hallmarks of the rise of authoritarian governments.102 A key characteristic of such governments is control of the mass media.103 While the responsibility for upholding democratic principles and checking the abuse of power ultimately rests with We the People, the public depends on independent institutions, including the courts, opposing political parties, the forces of dissent, and a robust, courageous, unrelenting press. The teachings of history are clear: in their own time, Adams, Lincoln, Wilson, and Nixon, blinded by fear and ambition, made the mistake of treating the press as their enemy— although this was not always clear to their contemporaries, who themselves were often blinded by fear and superficial calls to patriotism. If only more people had seen it while it was happening. If only Lincoln had learned from Adams, and Wilson had learned from both of them, and Nixon had learned from the rest. If only Trump learns from all of them.
Stephen F. Rohde, a constitutional lawyer and author of the books Webster’s New World American Words of Freedom and Freedom of Assembly, has served as president of the Beverly Hills Bar Association and chair of the ACLU Foundation of Southern California and Bend the Arc: a Jewish Partnership for Justice.
1 See, e.g., Donald J. [email protected] Donald Trump, Twitter (Feb. 17, 2017). The full tweet reads: “The FAKE NEWS media (failing @nytimes, @CNN, @NBC and many more) is not my enemy, it is the enemy of the American people. SICK!”; Jonathan Lemire, Trump, in unprecedented fashion for a president, rips press, Associated Press, Feb. 17, 2017, available at https: //apnews.com/60a22e93df684 f0ebaaaec63e5 e68147 /trump-unprecedented-fashion-president-rips-press; Jason Fuller, Trump’s Unprecedented War on the First Amendment Has Gone Nuclear, Huffington Post, Feb. 26, 2017, available at http://www.huffingtonpost .com/entry/trumps-unprecedented-war-on-the-first -amendment-has_us_58b26916 e4b0658fc20f9672; The Times Editorial Board, The Trouble with Trump, L.A. TIMES, Apr. 2-7, 2017, available at http: //www .latimes.com (On his first day in office, Trump called journalists “among the most dishonest human beings on earth” and regularly condemned legitimate reporting as “fake news.” “His administration has blocked mainstream news organizations, including The [L.A.] Times, from briefings and his secretary of state chose to travel to Asia without taking the press corps, breaking a longtime tradition.”); The Times Editorial Board, Trump’s War on Journalism, L.A. TIMES, Apr. 5, 2017, available at http://www.latimes.com. The media have observed that by undermining trust in news organizations, “delegitimizing journalism,” and “muddling the facts so that Americans no longer know whom to believe, he can deny and distract and help push his administration’s far-fetched storyline.” (Id. (citing Art Swift, Americans’ Trust in Mass Media Sinks to New Low, GALLUP, Sept. 14, 2016, available at http://www .gallup.com/poll /195542)).
2 Mark Landler & Maggie Hageman, At Rally, Trump Blames Media for Country’s Deepening Divisions, N.Y. TIMES, Aug. 22, 2017, available at https://www – .nytimes.com. See also Nicholas Kristof, We’re Journalists, Not the Enemy, N.Y. TIMES, Aug. 24, 2017, at A23 (Columnist Nicholas Kristof notes that as “Trump has systematically tried to delegitimize the institutions that hold him accountable—courts, prosecutors, investigators, the media,…journalism remains an indispensable constraint on power” and serves as “a bulwark of democracy” by providing an institutional check on powerful leaders.).
3 THE AMERICAN REPUBLIC: PRIMARY SOURCE 158 (Bruce Frohnen ed., 2002).
4 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 64-65 (Max Farrand ed., 1911) [hereinafter Fa rrand]; Paul Finkelman, Between Scylla and Charbydis: Anarchy, Tyranny, and the Debate Over a Bill of Rights in THE BILL OF RIGHTS: GOVERNMENT PROSCRIBED 103-74 (Ronald Hoffman & Peter J. Albert eds., 1997).
5 Farrand, supra note 4, at 564.
6 Id. at 631-32 (vol. 2).
7 Id. at 640 (vol. 2).
8 Letter from Thomas Jefferson to James Madison, in 12 THE PAPERS OF THOMAS JEFFERSON 438, 440 (Julian P. Boyd et al. eds., 1950).
9 Letter from Samuel Osgood to Samuel Adams, in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 263-67 (Merrill Jensen et al. eds., 1976).
10 LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 117 (1999) [hereinafter LEVY].
11 Id. at 117.
12 Id. at 282.
13 Id. at 123.
14 Id. at 123-24.
15 Id. at 125.
16 Naturalization Act, ch. 54, 1 Stat. 566 (1798); Alien Enemy Act, ch. 58, 1 Stat. 570 (1798); Alien Friends Act, ch. 58, 1 Stat. 577 (1798); An Act for the Punishment of Certain Crimes Against the United States (Sedition Act), ch. 74, 1 Stat. 596 (1798) [hereinafter Sedition Act].
17 GEOFFREY R. STONE, WAR AND LIBERTY: AN AMERICAN DILEMMA: 1790 TO THE PRESENT 5 (2007) [hereinafter STONE].
18 Sedition Act, supra note 16.
19 Letter from John Adams to the Mayor, Alderman, and Citizens of Philadelphia, in 9 WORKS OF JOHN ADAMS 182 (Charles Francis Adams ed., 1854); John Adams, Answer: To the Citizens of Newark, in the State of New Jersey, GAZETTE OF THE UNITED STATES 2 (May 2, 1798).
20 STONE, supra note 17, at 12.
21 President Thomas Jefferson, First Inaugural Address (March 4, 1801), The Avalon Project, Yale Law School, available at http://avalon.law.yale.edu/19th_century /jefinau1.asp (last viewed July 13, 2017).
22 CONG. GLOBE, 26th Cong. 1st Sess. 411 (1840). See 26 H.R. 80, 26th Cong., 1st Sess. 86 (1840).
23 David S. Reynolds, ‘Lincoln and the Power of the Press,’ by Harold Holzer, N.Y. TIMES, Oct. 31, 2014 (reviewing HAROLD HOLZER, LINCOLN AND THE POWER OF THE PRESS: A WAR FOR PUBLIC OPINION (2014)), available at https://www.nytimes.com [hereinafter Reynolds].
24 Abraham Lincoln, Proclamation Suspending the Writ of Habeas Corpus, Sept 24, 1862, in 5 THE COLLECTED WORKS OF ABRAHAM LINCOLN 436-37 (Roy P. Basler, ed., Rutgers 1953) [hereinafter LINCOLN].
25 STONE, supra note 17, at 31-32. 26 Id.
27 Id.; MARK E. NEELY JR., THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES 60 (1991); Abraham Lincoln: Military Arrests, May 17, 1861, in 4 LINCOLN, supra note 24, at 372.
28 STONE, supra note 17, at 38.
29 Reynolds, supra note 23.
30 STONE, supra note 17, at 38-39.
31 PAUL L. MURPHY, WORLD WAR I AND THE ORIGINS OF CIVIL LIBERTIES IN THE UNITED STATES 53 (Norton 1979).
32 Wilson Demands Press Censorship, N.Y. TIMES (May 23, 1917) at 1 (quoting a letter from Woodrow Wilson to Rep. Webb) .
33 18 U.S.C. §§791 et seq.
34 H.R. Rep. No. 65, on H.R. 291, 65th Cong., 1st Sess., 55 Cong. Rec. H.R. 3124, 3129 (May 29, 1917); 65th Cong., 1st Sess., in 55th Cong. Rec. H.R. 3306 (June 7, 1917).
35 STONE, supra note 17, at 52.
36 Masses Publ’g Co. v Patten, 244 F. 535, 539-40 (S.D. N.Y. 1917).
37 Id. at 539.
38 Id. at 539-40.
39 Masses Publ’g Co. v Patten, 246 F. 24, 35, 36 (2d Cir. 1917).
40 STONE, supra note 17, at 54.
42 Shaffer v. United States, 255 F. 886 (9th Cir. 1919).
43 STONE, supra note 17, at 55.
44 Sedition Act of 1918, Pub. L. 65–150, §3, 40 Stat. 553 (1918).
45 Id. See also STONE, supra note 17, at 57.
46 Frohwerk v. United States, 249 U.S. 204 (1919).
47 Schenck v. United States, 249 U.S. 47 (1919).
48 Debs v. United States, 249 U.S. 211 (1919).
49 It was in his opinion for a unanimous Court in Schenck, that Holmes wrote one of the most memorable (and oft misquoted) sentences in Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.” Schenck, 249 U.S. at 52. Pundits usually overlook that in Holmes’s hypothetical, the speech was both false and actually caused a panic. Stone asks, “Suppose the ‘cry of fire’ were true? Would it still be punishable? If not, does that suggest a possible error in Holmes’s reasoning?” STONE, supra note 17, at 59.
50 Abrams v. United States, 250 U.S. 616, 630 (1919).
51 David Wise, The President and the Press, THE ATLANTIC, Apr. 1973, available at https://www.theatlantic .com/magazine/archive/1973/04/the-president-and-the -press/305573 [hereinafter Wise].
52 Abrams, 250 U.S. at 630.
53 New York Times v. Sullivan, 376 U.S. 254, 276 (1964).
54 Id. at 270.
55 Wise, supra note 51.
56 Robert D. Hersey, Jr., Daniel Schorr, Journalist Dies at 93, N.Y. TIMES, July 23, 2010, available at www.nytimes.com.
57 Wise, supra note 51.
59 David W. Dunlap, 1971, Supreme Court Allows Publication of Pentagon Papers, N.Y. TIMES, June 30, 2016, available at www.nytimes.com.
60 New York Times v. United States, 403 U.S. 713 (1971).
61 Id. at 717 (Black, J, concurring).
62 Id. at 716-17.
63 Id. at 719.
64 Id. at 723-24 (Douglas, J., concurring).
65 Id. at 728 (Stewart, J., and White, J., concurring).
66 Wise, supra note 51.
67 Alex Shashkevich, Stanford experts on President Trump and the media, STANFORD NEWS, Jan. 30, 2017, available at http://news.stanford.edu [hereinafter Shash – kevich].
73 LEVY, supra note 10, at 123-24.
75 James Risen, If Donald Trump Targets Journalists, Thank Obama, N.Y. TIMES, Dec. 30, 2016, available at www.nytimes.com [hereinafter Risen].
76 United States v. Snowden, No. 1:13 CR 265 (CMH) (E.D. Va. June 14, 2013). See also Katherine Feuer, Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act, 38 B.C. INT’L & COMP. L. REV. 91, 105 (2015) [hereinafter Feuer].
77 See, e.g., Mark Norris, Bad “Leaker” or Good “Whistle blower”? A Test, 64 CAS. W. RES. L. REV. 693 (2013) [hereinafter Norris]. Since Chelsea Manning was serving in the U.S. military, the matter was handled internally.
78 Peter Sterne, Obama Used the Espionage Act to Put a Record Number of Reporter’s Sources in Jail and Trump Could Be Even Worse, Freedom of the Press Found., June 21, 2017, available at https:// freedom.press/news/obama-used-espionage-act-put -record -number-reporters-sources-jail-and-trump-could -be-even-worse [hereinafter Sterne].
79 United States v. Drake, 818 F. Supp. 2d 909 (D. Md. 2011).
80 For greater detail on the Drake case, see, e.g., Norris, supra note 77, at 699.
81 United States v. Leibowitz, No. AW-09-CR-0632 (D. Md. Dec. 4, 2009).
82 Sterne, supra note 78.
83 United States v. Kim, 808 F. Supp. 2d 44, 55 (D.D.C. 2011).
84 Sterne, supra note 78.
85 United States v. Sterling, 724 F. 3d 482, 509 (4th Cir. 2013); see also Risen v. United States, 134 S. Ct. 2696 (2014).
86 Sterne, supra note 78.
87 United States v. Sachtleben, No. 1:12-cr-0127 WTLKPF (S.D. Ind. Sept. 23, 2013), available at http://www .justice.gov/iso/opa/resources/76420139231545276182 .pdf.
88 Sterne, supra note 78.
90 United States v. Kiriakou, No. 1:12cr127 (LMB) (E.D. Va. Aug. 8, 2012); see also Feuer, supra note 76.
91 Scott Shane, Former C.I.A. Officer Released After Nearly Two Years in Prison for Leak Case, N.Y. TIMES, Feb. 9, 2015, available at www.nytimes.com [hereinafter Shane].
93 Kiriakou, No. 1:12cr127 (LMB).
94 Shane, supra note 91.
96 Risen, supra note 75.
97 Leonard Downie, Jr., and Sara Rafsky, The Obama Administration and the Press, Comm. to Protect Journalists (Oct. 10, 2013), https://cpj.org/reports/2013/10 /obama-and-the-press-us-leaks-surveillance-post-911 .php.
99 Risen, supra note 75.
100 Sterne, supra note 78.
101 Tom Porter, U.S. ‘Prepares Charges’ Against WikiLeaks Founder Julian Assange, NEWSWEEK , Oct. 21, 2017, available at https://www.google.com/amp /www.newsweek.com/julian-assange-wikileaks-trump -jeff-sessions-russian-hacking-587251%3famp=1.
102 Lawrence Britt, The 14 Defining Characteristics of Fascism, FREE INQUIRY, Spring 2003, available at http://www.rense.com/general37/fascism.htm. Other characteristics that resonate ominously today are powerful and continuing nationalism, disdain for human rights, identification of enemies/scapegoats as a unifying force, supremacy of the military, rampant sexism, obsession with national security, religion and government are intertwined, corporate power is protected, labor power is suppressed, disdain for intellectuals and the arts, obsession with crime and punishment, rampant cronyism and corruption, and fraudulent elections.
103 Robert Reich, Trump’s Seven Techniques to Control the Media, Moyers & Company, Dec. 1, 2016. http: //billmoyers.com/story/trumps-seven-techniques-control-media