We must make the First Amendment ‘durable.’ Here’s why | Miraldi – Poughkeepsie Journal

Rob Miraldi| Special to the USA TODAY Network

William O. Douglas was the curmudgeon of the U.S. Supreme Court. Fiercely independent, crusty, irreverent, a product of the New Deal and an active man who did not seem to fit behind a desk wearing a robe. But there he was, a Supreme Court judge for 36 years, the longest serving justice ever who wrote more opinions than any other judge.

Douglas had his critics Gerald Ford tried to impeach him in 1970 because he believed that when the Framers wrote the First Amendment to the Constitution, beginning with the words Congress shall make no law regarding freedom of the press or speech, they meant it. No law means no law.

Douglas, who died in 1980, was fearful most of all about the pervasive reach of snooping government that would chill reporters doing their work and inhibit people from speaking whats on their mind. Governmental intrigue or aggression is an eternal danger, Douglas warned in1974 in the only case the Supreme Court ever decided on the question of whether reporters are shielded from government prying into their sources.

So I wonder what he would say today about, for example, the recent revelation that longtime national security reporter Barbara Starr of CNN, whose phone records were secretly snared by the Trump Administration because she wrote stories with unidentified sources that Trump wanted. The stories she wrote in 2017 were mildly embarrassing but certainly no real threat to national security. It was a frivolous and dangerous pursuit, a fishing expedition.

What happened to Starr happened to at least seven other reporters that we know about. In fact, the Trump Administration sought the sources of nine journalists in its four-year reign. In contrast, Obama went after the same number in eight years, although it is worth pointing out that his administration was aggressive in its pursuits of leakers. And while presidents have sought reporters sources since the Civil War, the pursuit by Trump has taken it to a new level.

CNNs lawyers were gagged; they could not inform Starr nor go to court to argue that governmental prying was not only wrong but arguably illegal.

Self-government cannot succeed, Douglas wrote, unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting subjected to critique, rebuttal, and re-examination.

And that is threatened when journalists are at the whim of Presidents like Trump who believed the press is an enemy of the people.Pulitzer Prize-winning journalist James Risen, who has felt the sting of such probing, writes, For national security reporters today, being good at your job can make it hard to sleep at night.

So here we are again, 47 years after the court decided that reporters should be treated like all other citizens and that they have to turn over sources or go to jail.Unless Congress finally sees fit to pass a federal law which gives the press a privilege or as Douglas called it, a preferred position.

I spoke with Gabe Rottman, director of the Reporters Committee for Freedom of the Presss Technology and Press Freedom Project.His group is the premier advocate for the press in the nation. And he is hopeful that the time might have arrived for a federal press shield law to get through Congress.

In the past, resistance to treating reporters as privileged characters much as we do for clergy, physicians and spouses has brought resistance.In 2013, the law bogged down around how to define who would qualify for the privilege.Who exactly is a reporter in the age of the Internet? Julian Assanges huge dump of raw classified documents and emails in 2010 and 2016 made many not want to let him be called a reporter.

But 49 states in the U.S. have some sort of shield law that find a way to define who qualifies. Rottman says it revolves around finding the best definition of the function being served. It needs to be broad and functional. In other words, if you are pursuing facts to share with any public, you are a journalist.

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Sen. Ron Wyden of Oregon is clear that the time is now for a shield law.

The Trump Administration spied on reporters it suspected of no crimes in its hunt to identify their sources and prevent the American people from learning the truth about Trumps lawlessness and corruption, he declared in announcing his shield law.

Rottman is more cautious as to why from major news organizations had to face broad, secret demands for their phone and email records in an effort to identify their confidential sources.

Rottman says Congress needs to ask why.

Without a concrete, public accounting, observers can only speculate about the governments reasons, he told me. There is no public reporting on the reasons that the records were obtained.

Risen is a former reporter for The New York Times whose confidential sources revealed wide surveillance by the government on private citizens after the World Trade Center attacks. And the government sought with a vengeance to get Risens sources.

The real goal of leak investigations, he says, is to have a chilling effect on the press, to stop reporters from investigating the government. Embarrass enough investigative reporters and maybe they will stop embarrassing the government.

But that is not just bad for reporters, it is bad for democracy.

Go back to Douglas.

A reporter is no better than his source of information, Douglas insisted, rightly. The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but because the right to know is crucial to the governing powers of the people.

It comes down to the free flow of information to the public, saysRottman. Sources will not come forward, they wont even talk if they are worried about incidentally being swept up. You dont want the press to become an investigative arm of the government.

Douglas, again, hit the nail on the head years ago: Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.

The Biden Administration has recognized this, recently issuing clear and careful guidelines as to when a reporters source should be pursued by the federal government.Its a far cry from Trump.But the point, still, is the press cannot be at the whim of different administrations approaches.The First Amendment is not whimsical; it is the heart of democracy.

The rules need to be made durable, Rottman says.

Give the people a federal law that protects the reporters who gather their news from, as Sen. Widen says, the thuggish and Orwellian abuses of administrations like Trumps.

Rob Miraldis writings on the First Amendment have won numerous state and national awards. He teaches journalism at the State University of New York.

Twitter: @miral98

Email: miral98@aol.com.

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We must make the First Amendment 'durable.' Here's why | Miraldi - Poughkeepsie Journal