The Government's Assault on Press Freedom

By William Bennett Turner, San Francisco Chronicle. Posted December 12, 2006.

Vladimir Posner, the former Soviet journalist, used to claim the press was freer in the Soviet Union than it was in the United States. This was during Glasnost, as the Soviet empire was disintegrating. Posner explained that the government was dysfunctional, so journalists did not have to worry about the official censors, and the media had not been privatized, so journalists were not accountable to commercial sponsors and advertisers. The result was a kind of anarchic freedom. The press was free, but only for a brief window in time.

The window in America once was open wide and, I thought, permanently so. I used to tell my students on the first day of class that we had the freest speech and press in the world. I can't do that anymore.

In recent years American press freedom has eroded. Many other countries are now ranked freer than the United States -- all of the Scandinavian countries, Belgium, the Netherlands, New Zealand and many others. In the most recent survey by Freedom House, an independent American-based organization that assesses liberties around the world, the United States tied for 17th place, with the Bahamas, Estonia, Germany and others.

The international free-press advocates Reporters Without Borders ranked us 53rd, tied with Botswana, Croatia and Tonga. These rankings may not be scientifically valid, for a lot of subjective judgment is involved. But it is sobering to see the consensus that the United States is no longer anywhere near the top.

By virtue of Supreme Court decisions, the U.S. press remains freer than the press elsewhere in a few respects.

First, our law provides significantly greater protection for the press against libel suits, especially by government officials. In many countries, libel is a bullying tool for officials and the powerful to silence dissent. Under the 1964 decision in New York Times vs. Sullivan, insults, parodies and vicious criticism of officials are protected by the First Amendment.

Second, our law protects the press against almost any attempt by government to impose a "prior restraint" on what can be published. That is, the government is not allowed to censor, in advance, information the press may wish to publish. The famous "Pentagon Papers" case in 1971 allowed the New York Times and the Washington Post to publish information about a classified Defense Department study on American involvement in Vietnam, despite the government's contention that publication would impair national security.

Third, perhaps unique in the world, our law protects the advocacy of dangerous, potentially divisive ideas. One can preach overthrow of the government -- domestic "regime change" -- religious hatred, racial discrimination and even criminal activity. Under the Supreme Court's 1969 decision in Brandenburg vs. Ohio, government may not suppress ideas, however repugnant to most, unless their expression amounts to incitement to imminent unlawful acts.

It also is true that American journalists have not been physically attacked based on what they report, at least at home (although overseas, some have been, and one was beheaded). In some other countries, journalists risk harassment or worse for reporting that offends government officials or powerful figures. The Committee to Protect Journalists reported that 47 journalists were murdered last year.

But U.S. press freedom has been slipping away since Sept. 11, 2001. Now that we are in a seemingly permanent "war" on terrorism, the government claims wartime powers that result in restricting press freedom.

The Bush administration has multiplied exponentially the number of documents it classifies as secret, shielding them from public view. It has classified literally millions of documents "top secret," according to reports filed with the National Archives; and the office of Vice President Dick Cheney claims to be exempt from reporting even the numbers of records it brands with the "classified" stamp. (The administration has also tried to retrieve antique classified documents from columnist Jack Anderson's estate, contending that only the government may possess such documents, however old.) Within weeks after 9/11, President Bush issued Executive Order 13233, allowing him to veto public release not only of his own presidential papers but those of former President Ronald Reagan, Bush's father and former President Bill Clinton.

The administration also is aggressively pursuing leaks, not with a Nixonian Plumbers unit but by threatening criminal prosecution. Some Republicans in Congress have called for Espionage Act prosecution of the New York Times for publishing revelations about the National Security Agency's monitoring of communications by U.S. citizens and tracking international financial transactions. Bush himself said it was "disgraceful" for the Times to reveal these government activities and publishing the security agency's leak was "helping the enemy."

Pursuing leaks inevitably means pursuing the reporters who received and published the leaks, forcing them to give up confidential sources or telephone records or go to jail. Whatever Judith Miller's motivation and however questionable her arrangement with "Scooter" Libby, she went to jail solely because she refused to reveal communications with her source to the federal grand jury.

See more stories tagged with: press, democracy, freedom, first amendment, prior restraint

William Bennett Turner is a San Francisco lawyer who teaches a course on the First Amendment and the press at UC Berkeley.

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