ACS
Login:

BookTalk

ACS BookTalk features posts by authors of books on pressing law or policy concerns. Click here to catch up on the latest.

This week's selection »

Blog

Topics

Join ACS

Featured Videos

More Videos »

Video Podcasts

More Podcasts »

Find a Lawyer Chapter or Student Chapter

Blogroll

Legal Blogs

Policy Blogs

Join The Conversation

LinkedIn

Archive
Home > Blog > All > Press

Press

  • May 16, 2013

    Obama’s Weak Balancing Act

    by Jeremy Leaming

    Like his predecessor President Obama has embraced an aggressive, mostly secret and, at times, constitutionally suspect approach to waging a never-ending war on terror.

    Unlike its predecessor, the Obama administration has obsessively investigated leaks of information surrounding some of its counterterrorism efforts. The administration has launched at least six cases of alleged leaks, including one involving a foiled terrorist plot in Yemen that The Associated Press reported on last spring. As part of that investigation the Department of Justice secretly gathered and culled through phone records of AP reporters.

    Going on the information we have now it appears that the First Amendment, which protects freedom of speech including press from government interference, was too easily shunted aside in an over-the-top investigation of a leak. The AP was given no chance to challenge a government search of its phone records and have a judge decide whether national security interests trumped freedom of speech in this instance. Yes, Attorney General Eric Holder claims the leak was one of the most egregious he has seen in a long, long time. But he doesn’t explain how it was so terribly egregious, nor do the facts as we know them now support his sweeping assertion.

    And today, during a press conference, President Obama hardly appeared fazed by the criticism of the DOJ’s tactics, decrying leaks of counterterrorism efforts. “Leaks related to national security can put people at risk, they can put men and women in uniform that I’ve sent into the battlefield at risk,” he said.

    But the May 7, 2012 reporting by the AP, had, according to its president, Gary Pruitt, been held until the White House assured the AP that “national security concerns" were no longer an issue. Pruitt added, “Indeed the White House was preparing to publicly announce that the bomb plot had been foiled.”  

    Earlier this week The New York Times Editorial Board hammered the administration for its “zeal” for going after persons accused of leaking national security information. In the AP matter, The Times Editorial Board said the administration had offered no “credible justification for secretly combing through the phone records of reporters and editors at The Associated Press in what looks like a fishing expedition for sources and an effort to frighten off whistle-blowers.”

    It’s rather lame to argue that just because Republicans howled loudly over the AP coverage of the foiled terrorist plot in Yemen that the DOJ’s obnoxious action of spying on the AP was somewhat mitigated. Moreover, it’s not like this administration has needed prodding to aggressively and obsessively go after alleged leakers.

    More
    Tags:
    Press, Executive power, National security and civil liberties, Individual liberties, Constitutional Interpretation and Change, First Amendment, AP, Associated Press phone records, Attorney General Eric Holder, Department of Justice, Gary Pruitt, national security leaks, President Obama, The Associated Press
  • July 26, 2012

    Media Behavior Erodes Public Confidence, Undermines Press Clause Purpose

    by Joseph Jerome

    America’s confidence in the news media has hit an all-time low, a recent Gallup poll reveals.

    Today, a mere quarter of Americans holds much faith in the press. It is difficult to pinpoint exactly what is responsible for this precipitous decline. But a good place to start may be the media’s transformation from watchdog into, as Glenn Greenwald puts it, “inept stenographers.”

    The New York Times, for instance, recently admitted it grants politicians, campaigns, and senior policymakers final editing power of on-the-record quotations:

    From Capitol Hill to the Treasury Department, interviews granted only with quote approval have become the default position. . . . It was difficult to find a news outlet that had not agreed to quote approval, albeit reluctantly. Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms.

    The revelation comes after The Times sought reader input on whether it “should challenge 'facts' that are asserted by newsmakers.” Readers had evidently become “fed up with the distortions and evasions that are common in public life,” The Times wrote in January.

    Six months later, The Times has demonstrated just how far distortions and evasions seep into its own reporting. Modern political reporting has embraced what press critic Jay Rosen calls “The View from Nowhere.” 

    “Something happened in our press over the last 40 years or so that never got acknowledged,” he writes. “[T]ruthtelling was surpassed by other priorities the mainstream press felt a stronger duty to. These include such things as ‘maintaining objectivity,’ ‘not imposing a judgment,’ [and] ‘refusing to take sides.’”

    More
    Tags:
    Press, Supreme Court, Constitutional Interpretation and Change, First Amendment, doctored quotes, Glenn Greenwald, Justice Louis Brandeis, Justice Potter Stewart, media, Pentagon Papers, press clause, The New York Times, The New York Times v. United States
  • August 29, 2011

    9/11 and the Journalist-Source Privilege

    Guest Post

    By Geoffrey R. Stone, a constitutional law professor at the University of Chicago, and chair of the American Constitution Society’s Board of Directors. Professor Stone will be a panelist during an ACS Symposium this Thursday on legal policy shifts in the ten years since 9/11. Register for the symposium here.

    War inevitably intensifies the tension between individual liberty and national security. But there are wise and unwise ways to strike the appropriate balance. In the years after 9/11, the Bush administration embraced a series of policies — including torture, surveillance of private communications, clandestine detention of American citizens, and secret prisons in Eastern Europe — that undermined the fundamental American values of individual dignity, personal privacy, and due process of law.

    In my view, however, the most dangerous policy of the Bush administration was its attempt to hide its decisions from the American public. In an effort to evade the constraints of separation of powers, judicial review, checks and balances, and democratic accountability, the Bush administration systematically promulgated its policies in secret, denied information to Congress, abused the classification process, narrowly interpreted the Freedom of Information Act, punished government whistleblowers, jailed journalists for refusing to disclose their confidential sources, threatened to prosecute the press for revealing the administration’s secret programs, and broadly invoked executive immunity and the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs.

    By shielding its decisions from legal, congressional, and public scrutiny, the Bush administration undermined the single most central premise of a self-governing society: it is the citizens who must evaluate the judgments, policies, and programs of their representatives. As James Madison observed, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”

    More
    Tags:
    Press, Speech and expression, National security and civil liberties, First Amendment, 9-11 at 10, First Amendment, Free Flow of Information Act, Guest Post, journalist-source privilege, Post-9/11 issues
  • June 27, 2011

    Obama Administration Falls Short on Government Transparency, ACS Board Chair Writes

    The Obama administration’s disappointing record on government transparency is a lesson in the limits of the “trust us” approach to governing, writes ACS Board Chair Geoffrey R. Stone in an op-ed in The New York Times.

    Stone, a constitutional law professor at the University of Chicago who worked with President Obama at the university and acted as an informal adviser to Obama’s presidential campaign, laments that President Obama has not lived up to the promises of “Senator Obama” to “promote openness and public accountability in government policy making.”

    Stone points to the journalist-source privilege, whistleblower protection and the state secrets privilege as areas in which President Obama has shown a “disappointing willingness” to continue the Bush administration policy of hiding its decisions from the American public. He notes that one bright spot in Obama’s record was his repeal of a Bush administrative directive that allowed broad classification of government information.

    Nonetheless, he writes, “[t]he record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations.”

    He continues:

    More
    Tags:
    Press, Executive power, National security and civil liberties, First Amendment, Separation of Powers and Federalism, Geoffrey R. Stone, Government Transparency, state secrets privilege, whistleblower protection
  • January 4, 2011

    ‘SHIELD Bill,’ Would Undermine First Amendment, Prof. Stone Says

    Spurred by the disclosure of classified government information by WikiLeaks Congress is considering a broad measure that if enacted would undermine free speech rights, writes constitutional law scholar Geoffrey R. Stone in an op-ed for The New York Times.

    The bill, pending in both chambers, would make it a crime for anyone to "knowingly and willfully" disseminate information "prejudicial to the safety or interest of the United States." Stone, a law professor at the University of Chicago and chair of the ACS Board, says that while the measure "may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation."

    Stone continues:

    The clear and present danger standard has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.'s 1919 opinion in Schenk v. United States. In the 90 years since, the precise meaning of ‘clear and present danger' has evolved, but the animating principle was stated brilliantly by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California. The founders ‘did not exalt order at the cost of liberty,' wrote Brandeis; on the contrary, they understood that ‘only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such ... is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.'

    In December, Professor Stone testified before the U.S. House Judiciary Committee on the bill, which is dubbed the "Securing Human Intelligence and Enforcing Lawful Dissemination Act," or SHIELD Act. His written testimony before the committee is available here.

    More
    Tags:
    Press, First Amendment, First Amendment, Geoffrey R. Stone, SHIELD Act, WikiLeaks
Back to top 
  • Site designed by