The First Amendment doesn’t give the press immunity, but the Justice Department typically shows it a measure of deference.
The First Amendment doesn’t give the press immunity, but the Justice Department typically shows it a measure of deference.
This is the second in a series of five columns on the recent revelations that the Justice Department, beginning in the Trump administration and continuing into the Biden administration, conducted investigations of leaks of sensitive information by government officials to members of the media. Those investigations reportedly involve subpoenas for communications records of several journalists, as well as other controversial information demands by investigators. Follow this link for the first column in the series.
T he Trump Justice Department subpoenaed communications records for reporters at the New York Times, the Washington Post, and CNN. As a general matter of principle, this riles journalists. Additionally, there are two specific complaints.
First, much of the investigative activity took place in the last weeks of the Trump administration, even though the records pertained to that administration’s first months, when the leaks occurred. Second, the Biden Justice Department, at least initially, continued the investigations, getting extensions on gag orders that prevented Big Tech telecoms from alerting the media and other targets. Indeed, the Biden DOJ persisted in an ultimately unsuccessful effort to pry records pertaining to four Times reporters from Google (which manages the paper’s email system). Furthermore, it defended a highly unusual arrangement in which a nondisclosure order permitted the Times’s lawyer and a handful of top executives (including publisher A. G. Sulzberger) to learn about the Google subpoena but barred them from discussing it with anyone else, including the four targeted journalists.
While journalists invariably assure their sources of confidentiality, it is an unenforceable commitment. Journalists may be compelled by subpoena to reveal their sources and imprisoned for contempt if they do not comply.
Still, even though there is no constitutional privilege shielding communications between reporters and sources, the First Amendment vouchsafes freedom of the press. Naturally, media advocates portray this safeguard as if it were absolute immunity. It never has been.
Basically, the press may not be barred from publishing information — no prior restraints. Media outlets, however, are not immunized from liability for the harms that publication may cause (although the Supreme Court has given them outsized protection from libel claims). Nor is there a journalist-source privilege; reporters may be directed to reveal their sources of information, just as all Americans are presumptively required to do if subpoenaed in a criminal case. Since the First Amendment does not give the press immunity, the Justice Department owes it only a respectful measure of deference, not a fortress of insulation.
DOJ guidelines thus disfavor prosecutorial demands for information from journalists. Such demands are allowed only in narrow circumstances: generally, probes of serious crimes when there are no other alternatives for acquiring vital evidence. Moreover, in many cases where making a demand might be defensible, the DOJ tends to shy away because media outlets close ranks to condemn such demands, fight them like hell in court, and use them to urge Congress that they need statutory protection. If a media shield were ever enacted, it would prevent enforcement of subpoenas even in dire, life-or-death scenarios — notwithstanding that other citizens must comply with subpoenas, even if doing so could endanger their lives.
As a result, whenever prosecutors seek to subpoena journalists or their communications records, the Justice Department must balance the need for the information against the interest in having a press that is uninhibited in reporting on matters of importance to a free, self-determining society. The questions this implicates are clear: Is the case really important? Is there no other way to obtain the information?
Contrary to the suggestion in some reporting, the fact that an investigation is pursued months or years after a classified leak in no way delegitimizes the probe. Again, unauthorized disclosure of intelligence secrets is a serious crime, worthy of being investigated as long as the five-year federal statute of limitations has not lapsed. Of course, an unexplained delay in seeking information could suggest questions about the significance or strength of the case; but it could just as likely mean investigators were trying to solve the case without resorting to an examination of a reporter’s communications. Justice Department inspector general Michael Horowitz is a highly experienced prosecutor and, in the IG role, has proved himself to be an honest broker. We should trust that he will assess whether the subpoenas, apart from their legality, were reasonable investigative measures under the circumstances.
On that score, it is noteworthy that the Biden Justice Department did not abandon the investigation just because it was begun by the Trump Justice Department. Even though Biden’s model, the Obama administration, was zealous in pursuing leakers by scrutinizing journalists’ communications, and even though the Justice Department often strives for institutional consistency when administrations change (in order to project nonpoliticized law enforcement), it is hard to believe the current Justice Department would have persisted in something it saw as a Trump vendetta.
If the leak investigations at issue were improper, however, Horowitz will undoubtedly make that clear.