The Fate of the First Amendment--Huffpo Readers Get Their Cut

12/18/2005 10:08 pm ET | Updated May 25, 2011

I figured I’d get a robust reaction to my posting of December 17, in which I attacked Ronnie Earle, the Texas district attorney who has turned his attention from indicting Tom DeLay to suppressing the free speech of the Free Enterprise Fund.

And Huffington Post-ers were vocal, even vehement, in exercising their own free speech rights. The comments, 26 of them in less than a day, were almost all critical—except for those that were extremely critical. “Where were you when the Republicans spent $70 million investigating Clinton for getting his knob polished by an intern?” was one posting. (For the record, in my column-writing during 1998-9, I never supported the impeachment or conviction of the 42nd President.) Perhaps the most hostile of the comment-posters did not seem to be in tune with the spirit of free debate: “Arianna – Didn’t you deleat [sic] this fascist yet.” Such sentiments aren’t quite what free-debate paragon Voltaire had in mind in 1770 when he declared, “I detest what you write, but I would give my life to make it possible for you to continue to write.”

One poignant posting expressed a more-in-sorrow-than-in-anger tone: “Pardon us Mr. Pinkerton. We are unlikely to believe anyone that works for Fox News. Yes, you make a compelling argument, [emphasis added] but we can't help but be suspicious of people . . . that try to influence the public against investigations into clearcut cases of abusive wrongdoing.” Trying to influence the public? Isn’t that what everyone in the media tries to do? By that logic, is it possible that some day in the future, a prosecutor will come nosing around The Huffington Post? Or its comment-posters?

And there was even one little peep of support in the comments section: “Earle has gone too far. What justification does he have to ask for these documents?” That’s one-for-twenty-six, which means that I am batting .038. Well, it’s a start.

But here’s what’s really starting: There’s a feeling in the country now that enemies must be crushed—even if such crushing also crushes the Constitution.

What’s my evidence? Already, the once-mighty Fourth Estate is crumbling, under economic, technological, and now legal pressures.

The economic pressures are familiar enough: layoffs have made weakened investigative units and softened the resolve of many institutions to speak truth to power. And the technological pressures are apparent, too: amidst ever more intense competition, market shares have declined. That’s great news for media diversity, but the changes have also shifted the power-relationship between the First Estate and the Fourth Estate; the government is bigger than ever, but each media outlet is smaller, and thus weaker. Which is to say, the government can, in effect, exercise a divide-and-conquer strategy.

And now, legal pressure, too. We might consider, as one leading indicator, the ultimate impact of the Patrick Fitzgerald investigation of “Plamegate,” which is going to enshrine the idea, in the minds of many, that it’s perfectly OK for a prosecutor to haul reporters in front of a grand jury, jailing them if they won’t talk about their activities, which should be protected by the First Amendment—but aren’t, at least not any more. Yes, I am referring to the dreadful Judith Miller, ex of The New York Times.

I am no fan of Miller’s. On the Fox “News Watch” show, I said repeatedly, over the past two years, that she is the worst reporter in America, and that she should have been fired from her job for gross malfeasance. But I always stopped short of wanting to see her jailed for defying Fitzgerald, because of the precedent that such jailing would set.

And in fact, that ominous precedent is playing itself out, even now. Other reporters, who have nothing to do with Plamegate, are now facing possible jail time for keeping their sources secret—for example, Walter Pincus of The Washington Post, who was held in contempt on November 16 for refusing to disclose information to Wen Ho Lee’s attorneys, as they pursue their civil action against the federal government.

Reporters risking the clink for refusing to cooperate in civil trials? Where will it stop? At the rate we are going, it won’t stop. Long after Fitzgerald has completed his work, prosecutorial pressure on the press will continue, to the point where every reporter with confidential information has one foot in a prison cell. What will be left of free speech then? Do we really want Uncle Sam to have his heavy boot firmly fixed on the neck of Liberty?

OK, back to the Free Enterprise Fund. Some will say that the FEF is not a media organization, even if we do publish and communicate quite a lot. After all, it’s our noisy advocacy that has gained us the invasive attention of Earle. But I believe that we should be included inside the protection of the First Amendment—for as long as that lasts. As Thomas Paine wrote in The Rights of Man , “The end of all political associations is, the preservation of the rights of man.” And the Free Enterprise Fund is, like it or not, a political association.

So even those who disagree with our views should take a page from Voltaire and defend our right to express these views.

The alternative, which now looms dead ahead, is simply too bleak to contemplate.