By David A. Kaplan
FORTUNE -- Since when did the press become exempt from the normal (and, yes, sometimes excessive) reaches of government? I just checked the First Amendment -- it's a really quick read -- and I can't find anything indicating immunity for journalists from investigatory techniques that apply to everybody else.
Press precincts are up in arms about the disclosure this week that the Justice Department secretly obtained two months of telephone records of reporters and editors at the Associated Press. "Obama's War on Journalists!" hollered Slate. While the government has yet to fully explain its actions, the surveillance clearly is related to an AP piece a year ago about a foiled terror plot. That story, citing unnamed sources, disclosed details about CIA actions in Yemen to thwart Al Qaeda plans to blow up a plane headed to the U.S. At a news conference yesterday, Attorney General Eric Holder described the AP article as among "the top two or three most serious leaks that I've ever seen," a leak that "put the American people at risk."
The federal government is notorious for invoking national security concerns when there aren't any. Forty years ago, the Nixon administration infamously, and unsuccessfully, went all the way to the U.S. Supreme Court to try to block the publication of the Pentagon Papers. More recently, the WikiLeaks saga hardly led to the collapse of American intelligence, despite prognostications otherwise. But the fact that the government exaggerates and dissembles hardly means it isn't entitled to try to enforce the laws of secrecy that it imposes on its public servants, just as the press is entitled to try to get those employees to talk confidentially for investigative stories. The press's agenda -- to get a good story and to get it ahead of the competition -- is no better or worse than the government's. I regard the exchange between source and journalist as essentially transactional -- each actor probably has something to gain, and neither actor is likely acting selflessly.
And yet the press is palpably outraged. Note that the AP itself isn't being prosecuted. And other efforts of this administration -- and prior ones -- to curb leaks haven't been aimed at jailing journalists. All the government is doing is aiming to enforce its laws. The press' self-serving position seems to be that government instead ought to tacitly endorse leaking -- "whistle-blowing," as we conveniently describe it -- the better to help we journalists get our stories. That position strikes me as sanctimonious and smug.
There is an inherent structural tension between government and press. Jefferson wrote about it long ago. That tension is a good thing. Many of us don't trust government, all the more when it has the power of surveillance, intrusion, prosecution, and incarceration. Good journalism can act as a brake on excess. Yes, sunshine disinfects. But that doesn't mean government is supposed to be a willing participant in the violation of its own laws. From the government's perspective, lawlessness is a bad thing, and disclosure of secrets can endanger security. When the Justice Department, legally (so far as we know), wants to obtain evidence to prove law-breaking, it seems to me the press is entitled to no special protection. As the saying goes, the law is entitled to "everyman's evidence." The public ultimately does have a check on government when it gets the balance between candor and secrecy wrong (and maybe we'll eventually conclude the Obama Administration is getting it wrong): We vote the hacks out of office.
Throw me out of the press club if you like, but when the press correctly and legitimately seeks confidential information from government sources -- "leaks," by any other name -- then the press can't profess indignation when the government responds. Nobody respects a bellyacher.
David A. Kaplan, a Fortune contributing editor, is also a lawyer and teaches First Amendment law and ethics at New York University.
Video surveillance is already big business. In the aftermath of the Boston Marathon bombings, expect it to get even bigger.Apr 26, 2013 4:56 PM ET
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