More on the Fourth Estate

Along with blogging on my lecture on US media yesterday here, I also blogged on it at the PFF blog. In that post, I said:

Whatever criticism one might level against the US press (and don't hold back, it's all been said) I think we have a healthy media that has remained independent from the government, is demanding in its search for the truth, yet has enough self-restraint not to jeopardize national security.

I wrote that because one of the diplomatic spouses had asked me a direct question about whether a publication would in fact sit upon information harmful to national security, and when my answer apparently wasn't strong enough a foreign embassy defense attache cited a specific example of a reporter (in this hypothetical example, me) being handed schematics on a new missile. The assumption was that I would write the story and my editor would publish it.

I think the US press shows more restraint than that. I told them I'd most certainly conduct the interview (some seemed to think even listening to this information was wrong) but that it would be a decision with my editors as to the appropriateness of publishing the information. I also cited some recent evidence of media restraint:

• During the invasion phase of the latest Iraq war, news media made it clear they wouldn't give away troop positions or other sensitive information. This was a condition of Torie Clarke's embedding program, but it had historically been the practice of news media. When "reporter" Geraldo Rivera went live on the air drawing batallion movements in the sand, he was taken off the air.
• When the N.Y. Times reported the scoop on the Bush spying program (performing wiretaps on US citizens without a court or FISA warrant), they said they had sat on the information for about a year, largely at the request of the White House. (Of course, the White House still didn't want them to run it when they did, but when would the Administration ever want that story published?)

I did acknowledge that as we move to this brave new world of media, with bloggers and other online reporters who aren't part of a conventional media operation, don't have editors, and may not feel bound by the traditional ethics of journalism, this restraint may not be as visible. But I challenged squarely the notion that a reporter -- a US citizen -- would sell out her country for a story.

The University of Chicago Law School blog has written a piece on the desire of the Bush administration has threatened criminal prosecution against the Times for its reporting and The Washington Post for exposing secret prisons. The legal hook is the 1917 Espionage Act. After noting that the federal government has never criminally prosecuted the press for revealing information the government wanted secret, it outlines three reasons why such an effort here should fail:

1. The communication-of-information provision of the Espionage Act was never intended to reach the press.
2. If applied to journalists, it would unquestionably violate the First Amendment.
3. If "Congress today enacted legislation incorporating the requirements of the First Amendment, it could not reach the exposés published by the New York Times and the Washington Post, for they were clearly protected by the First Amendment. Under existing law, such a statute would have to be limited to publications that (a) do not disclose information of legitimate and important public interest and (b) pose a clear and present danger of serious harm to the national security. The exposés of the Bush administration’s secret prisons and secret electronic surveillance of American citizens clearly concerned matters of legitimate and important public interest, and the administration has made no showing that these disclosures created a clear and present danger of serious harm to the national security. Thus, under a properly drawn statute these disclosures could not constitutionally be punished."

I'm not a lawyer, but I'm grateful to this law professor for the clarification here. As an avid reader of presidential biographies, I know there's a long history of presidents trying to stretch existing law to achieve their ends, perhaps inevitable in a system with so many guaranteed liberties and so much power awarded not to the executive but to the legislative branch. Still, explaining how a potential legal abuse could occur doesn't excuse it, and I hope wiser heads in the Administration decide to take the PR hits from these Pulitzer Prize-winning investigations and move on.

Now if someone wants to question how Washington Post fashion critic and nasty snark queen Robin Givhan won a Pulitzer, I'm all for it.