I should begin by saying that Rob Long warned me some years ago against responding to online critics. It is, he said, simply dipping your toe in quicksands. If you pull back instantly, you will have no effect; and if you don’t, you will be swallowed up completely by the greedily glutinous silicon.
At the same time there is the little matter of correcting manifest nonsense and silly misrepresentation. As the late Ferenc Molnar wrote in response to a hostile review of his books, it appears that those who can write outnumber those who can read. And that’s the case here.
There are threats here — both to journalism and to government — and both are growing. The NSA claimed a right to excessive surveillance; the Guardian claims a right to limitless disclosure. Both justify themselves as being on our side. Neither can be fully trusted.
If anything, I understated the point. Most of my critics treated the early accounts of the Miranda arrest from Greenwald and the Guardian as Holy Writ. Yet as the skeptical forensic analyses of Louise Mensch and Dan Hodges among others had shown, these accounts included both outright errors and omissions of highly relevant facts that contradicted their basic narrative. And in the side matter of government thugs smashing up laptops in the Guardian basement, its editor’s own account of this murky episode has undergone a subtle shift that makes it sound less like a government crackdown and more like a smooth establishment deal, as I discussed more or less satirically.
All that said, there is a genuine problem for anyone who believes in both unfettered free speech and in the right of democracies to protect legitimate secrets. This was something I had to address earlier this year when I was invited to speak on the First Amendment of the U.S. Constitution to the Constitutional Convention in St. Louis. My speech was an account of how I gradually moved from being a skeptic about it – not long after arriving in the U.S. I had represented the British view of official secrecy on a panel at the Columbia Journalism School in 1989 – to being more or less a First Amendment absolutist. It was amended after critical discussion at the St. Louis Convention. Some material of interest to Europeans was added, and it is available as an argument for a European First Amendment. Though it describes a journey towards a libertarian position, it acknowledges a particular difficulty along the way. In the CJS discussion the following incident took place:
[O]ne distinguished investigative journalist was completely flummoxed when a questioner from the floor asked the following question: if you had discovered in 1940 how President Roosevelt was unconstitutionally waging a secret naval war against the Nazis in the Atlantic, would you have published the information, knowing that such publication would help Hitler and perhaps bring about FDR’s downfall? He had clearly never considered the point from that angle and could not find a satisfactory answer to it. Maybe there is no satisfactory answer to it, if you believe both in press freedom and in legitimate official secrecy, merely an irresolvable conflict in principle that has to be solved on a case-by-case basis in practice.
The questioner’s example was not a good one because it specified that Roosevelt’s naval war was unconstitutional. Most such dilemmas between press freedom and official secrecy – for instance, the Pentagon papers case – lack that complication. But it does not significantly affect my tentative conclusion: If you believe in both freedom and secrecy, then you are faced with a conflict that is irresolvable in principle and therefore has to be solved on a case by case basis in practice.
My critics are reluctant to believe this. They think that the First Amendment has settled more than it has. What it has done is important and extremely valuable. It has fostered a social climate of very high tolerance for dissenting views. It has prevented the kind of “creeping regulation” of the press that occurs in Canada, Europe, Australia, and Britain. Above all, it has set a very high bar indeed for prior restraint – essentially when national security is at stake. But that prohibition is not an absolute one. And in America, as in Britain, discussions occur between media editors and government officials when reporters have uncovered a story that is legitimate but highly sensitive in national-security terms.
As I argued in the original article, journalism as such has been under a diminishing threat in recent years. Media organizations have become less compliant with government restraints. Though government intrudes on the lives of ordinary citizens more than it used to – the surveillance society, etc. – it has been less harsh towards the mainstream media. Under President Obama, of course, government has had little reason to be harsh with reporters and editors who have protected it against scandals until they themselves came under official scrutiny with the AP and James Rosen cases.
The Miranda story was, conveniently enough, a rare apparent scandal that didn’t directly involve the Obama administration. It was enthusiastically pursued by the media as a result. Instead of having legs, however, it has turned out to have arthritis. But the NSA scandal, much larger and nearer home, is still generating scandalous stories. If my critics want to feel warm with indignation, they should turn their attention to that. But it’s about government keeping secret the wrongs it’s done, not about denying the government the right to have any secrets at all.