Does American Journalism Have First Amendment Protection Anymore?

The First Amendment to the US Constitution is short and simple:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It has been the law of this land, and informed the government’s relationship to citizens, religion and the press, since our founding. But as of May 31, 2013, it is in extreme jeopardy.

The Obama government has come up with two angles from which to fatally attack the First Amendment. The first of those is Attorney General Eric Holder’s lawfare against the Associated Press and Fox News. The Department of Justice circumvented ordinary procedure in both cases and swept up vast information on journalists at both organizations, in the name of investigating government leaks that appear to have little bearing on national security. Holder’s DOJ is not investigating all government leaks, just some of them. It is not, for instance, investigating information leaked from the government’s highest levels to the New York Times regarding the president’s drone kill list. It is not investigating information leaked about the raid that killed Osama bin Laden, or any of the classified information that was leaked about the identities of Seal Team Six. It did, on the other hand, investigate the AP over a leak about a foiled underwear bomb plot, and it did investigate Fox over a leak involving North Korea. DOJ told neither the AP nor Fox that it was targeted, leading to the reasonable question of whether other journalists and organizations have been or continue to be targeted by DOJ records sweeps.

Caught snooping on the Associated Press, Holder at first denied any knowledge of it. On May 15, 2013, Holder stated, flatly, under oath before Congress, that “In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy.”

Then a few days later, the Washington Post and then NBC reported that Holder had personally signed off on a search warrant to obtain the phone records and emails of Fox reporter James Rosen. Caught again, Holder told a closed-door meeting of the press that his department would establish new “guidelines” for seeking journalists’ phone records and other personal and professional records. Those new guidelines no longer require Justice to claim that the reporter is engaged in criminal conspiracy. Holder has loosened the standards and made it easier for him and his department to snoop on and abuse journalists, again, without their knowing about it or being able to challenge warrants against them.

The effect of this policy is very clear: Journalists are no longer safe, and neither are their government sources, from government snooping. It’s as simple as that. Holder’s edict will chill investigative reporting on both ends, at the reporter and among potential sources. The effect is this will be that reporters will tend to report “leaks” that make the government look good, and will tend to shy away from reporting government skullduggery. Confidential sources will be even more hesitant than they already are to blow the whistle on government wrongdoing.

Holder’s Justice Department has also devised a second angle from which to attack the First Amendment. That, as we reported earlier, has to do with free speech on social media. The Department of Justice is announcing that going forward, free speech criticizing Muslims can have serious federal consequences. The FBI may come down on anyone who posts anything that any Muslim deems offensive enough to report to the government. Those of us who have written online about jihad and jihadists since 9-11 now have reason to fear that anything we have written in the past and anything we may write in the future may be used against us by jihadists who wish to impose Islamist speech codes on the United States. Such people will now have an ally in the US Department of Justice. Those of us who criticize such people, do not. Not as long as the Obama government is in power.

Added up, journalists who investigate government wrongdoing, even government policy, can expect that the government will spy on them without their knowledge unless their investigations follow lines that the government approves. Journalists who chronicle the jihad at anything beyond a superficial level have sound reasons to fear that the Islamists’ heckler’s veto could make us targets of the US Department of Justice.

The First Amendment, it turns out, has an exploitable flaw. “Congress shall make no law…abridging the freedom of speech, or of the press” it says. Congress did not have to make a law. A devious president and his ally just had to come up with a couple of executive policy changes, and the First Amendment has been hacked.