The Independent of London reports that Attorney General Jeff Sessions is planning on criminalizing reporting of classified government information. The piece, worth checking out here, reports that the DOJ “is reviewing policies for subpoenaing reporters during investigations of federal intelligence leaks, an indicator that the US government may consider more aggressive tactics to try and force journalists to identify their sources.”
The Independent quotes Sessions, who announced to reporters that “One of the things we are doing is reviewing the policies affecting media subpoenas. We respect the important role that the press plays, and we will give our support. But, it is not unlimited. They cannot place lives at risk with impunity.” This statement, like most everything that comes out of the mouths of members of this administration, is absurd on the face of it, not to mention a flagrant violation of freedom of the press under the First Amendment.
It’s difficult to know for certain how serious the administration is in terms of trying to implement this attack on press freedom. The wannabee fascists running Trump Inc. – starting with Trump himself – are mostly bluster, and little action. Much of what Trump and his administration say to reporters is worth little outside of its initial tabloid-esque shock value. And most of Trump’s tweeting is simply a ploy to keep the administration atop the 24-hour news cycle, as if the president’s presidential tenure is simply an extended run of “The Apprentice.”
But there are early indicators that Trump may be serious this time. Channeling his inner Richard Nixon, the DOJ is beginning a crackdown on leaks from the White House to the press. As The Independent reports, “Mr. Sessions has instructed Deputy Attorney General Rod Rosenstein to oversee all classified leak investigations, and to monitor each case. The DOJ is tripling the number of active leak investigations as well, while the FBI is devoting more resources to cracking down on leaks. Four people, he said, had already been charged with unlawfully disclosing classified material, or for concealing contacts with federal officers, he said.”
If Sessions and Trump are serious about assaulting reporters, then serious legal questions immediately emerge regarding the executive’s attempts at censorship. Most obviously, it’s crucial to point out that the language the First Amendment plainly states that “Congress shall make no law…abridging the freedom of speech, or of the press.” For those unfamiliar with customary law and legal precedent, this protection of journalists applies against states and the executive branch, not just Congress.
In the case of Near v. Minnesota (1931), the Supreme Court ruled that state officials could not exercise “prior restraint” against journalists by censoring the news. Rather, it was up to journalists and editors to decide whether controversial news content was deemed “scandalous” or “malicious.” In 1971, the Supreme Court dealt a blow to the Nixon Administration and its efforts to censor reporting on the Pentagon Papers. In New York Times v. U.S., the court ruled that the executive had no power to exercise prior restraint against journalists, especially when there was a compelling public right to know about classified intelligence that exposed government lies and deception.
The court in NY Times v. U.S. was clear that censorship would only be legally allowed if content that was reported directly threatened American lives. For example, if a reporter gave up specific information about troop positions in the field, which led to the death of a soldier, the federal government could censor similar stories in the future in the name of “national security” interests.
Of course, there are no “troops in the field” so to speak that Sessions or Trump has drawn attention to, who were killed as a result of leaked classified intelligence. This means that Session’s claims about promoting national security have little legitimacy in a legalistic sense, and will probably be struck down in court if this administration insists on following through with its threats against journalists.
What Sessions and Trump have apparently missed, or perhaps what they don’t care to realize, is that while federal officials may not be legally protected in their efforts to leak information, there is no question that reporters themselves are covered under First Amendment protections even when it comes to publishing classified information. The entire point of the press is to report on issues in which the public has a right to be informed. Democracy is simply not possible when officials are free to censor news reports with impunity, thereby keeping the public unaware of official deception and illegalities.
Despite the importance of a free press to promoting democracy, few Americans are so naïve as to believe that the mass media in the U.S. perform the vital function of keeping the public informed, especially when it comes to exposing official misinformation and lies. Journalists have long been in-bed with officialdom, as countless academic studies document how the news media systematically privilege government voices via an “official source bias.” This has meant the marginalizing of citizen voices – especially those whose beliefs fall outside the bi-partisan range of “acceptable” opinions.
When authoritarian governments (particularly non-allied ones) actively censor the news, western political officials cry foul, lamenting the suppression of free speech and democracy. But when American journalists voluntarily truncate their reporting to fit official agendas in Washington, we hear hardly a word from western intellectuals or officials about propaganda in the news. Both systems – whether it be authoritarian censorship or voluntary self-censorship – play a propaganda role in terms of amplifying official voices and suppressing dissent. But there is little recognition of this in western discourse.
Western journalism would be vastly improved if American journalists would simply stop concentrating their reporting of U.S. politics around Capitol Hill and the White House. In an era when official spin is no longer concealed, and the Trump administration demonstrates open contempt for facts, there is little to be gained by wasting one’s time sitting through blatant propaganda press briefings at the White House, or listening to Republican Senators trying to cover for the president while staying in character. It would be far better for reporters to simply have the White House press secretary fax over whatever nonsensical official statement the administration wants to disseminate that day, and then get to work on some real reporting.
Instead of fighting for scraps of trash from the Oval Office, reporters could be diversifying their news sources, drawing on information from intellectuals, academics, citizens groups, views from abroad, and other non-governmental actors. The benefit of this approach to reporting is obvious enough: while officials would still have a chance to get their perspectives out, reporters would radically improve the quality of discourse by incorporating not only the views of the powerful, but those cut out of political power.
But the truth of the matter is that corporate media outlets have no interest in redefining what it means to report the news. Those who own these outlets have long been content to regularize their production of the news – thereby ensuring a steady stream of advertising profits – through a conveyor belt style of reporting in which officials tell reporters what to report, and reporters pretend that their amplification of official views constitutes “objective” and “unbiased” coverage. These media outlets are so hopelessly wedded to the status quo that they can’t even extricate themselves from the clearly abusive relationship that’s developed between the Trump administration and the White House Press Corps. This model of journalism is intellectually and ethically bankrupt, and most Americans seem to know it considering how little trust they have in Washington or in the news.
There is a much-needed conversation about how to improve journalism that is not taking place. Corporate news outfits will never change their stripes, but it is still worthwhile to engage in a discussion of what a truly independent media system would actually look like. A more in-depth conversation on where we need to go from here will have to wait for another time, but I think one major point is worth stressing here is that we desperately need to see a shift away from reporting as official stenography, and toward reporting that stresses truthfulness and accuracy.
I don’t’ want to read a “news” report that simply tells me what Democrat A and Republican B want me to think. The New York Times and other corporate media do a wonderful job of that. But this should be a very small part of reporting. The heart of modern reporting should first emphasize providing a fuller picture of political views of Americans, including not only those who parrot the beliefs of two increasingly unpopular major parties, but also the other half of the public, which is increasingly disillusioned about American politics, and expresses apathy toward a system they believe does not serve the interests and needs of the people.
Second, journalism must stress at its core fact-checking and assessments of the truthfulness of official statements, rather than simply uncritically repeating official statements. Reporters have only just begun to do this, mainly since Trump rose to national political prominence. But this new emphasis on fact-checking is only happening because the president’s statements are so transparently absurd and fallacious on the face of it, that to ignore his lies would threaten any lingering credibility left in the news. Rather than half-hearted fact-checking, we need a new type of journalism that is committed to serious, regular investigations of not only the blatant official lies, but of the routine official misinformation and half-truths that have long dominated the messaging of both political parties.
Cries of bias will inevitably accompany any serious attempt to promote independent, investigative journalism. But if the Trump administration is going to demonize the media and criminalize critical reporting, what have journalists got to lose? American reporting needs to shift away from its slavish reliance on official sources at a time when political officials are intensifying their authoritarian, fascistic attacks on the media. If this means a shift away from a corporate media system that is inextricably linked to the halls of political power, so be it.
Non-profit and taxpayer funded journalism provide serious advantages over the current for-profit journalistic model, in that they allow for the removal of corporate advertising and business pressures on reporters, while still protecting journalistic freedom from government censorship, (freedom of the press is already codified in the U.S. Constitution and via customary legal protections of the courts). In an era when citizens demand free information and no longer want to serve as captive audiences to for-profit print, online, and television media, consumption of traditional advertiser funded media is rapidly declining. As the old dinosaurs of the American press begin to fade away, we urgently need to begin a discussion about what news-gathering will look like in the future.