05/29/2013 08:36 pm ET Updated Dec 06, 2017

What I Would Have Said to Eric Holder

Attorney General Eric Holder is reportedly meeting with members of the press, to hear what they had to say about the Justice Department's actions towards the Associated Press and a Fox News reporter. Apparently, my invitation to this meeting got lost in the mail (perhaps it is in my "Spam" folder, I'll admit I didn't check...), so allow me to use the format of this column to say what I would have said to Eric Holder had I met with him.

Mister Attorney General, the reason I have such a problem with issuing warrants or subpoenas for news reporters is because I am aware of the history of the laws being used to do so. I have a hard time believing that you or your boss (a former constitutional professor) are completely unaware of these precedents in American history, but I haven't heard anyone else mentioning them, so I thought it fell to me to bring them up.

The Espionage Act of 1917 wasn't the first time the federal government decided to criminally target people who had the audacity to publish writings critical of those in power. That infamy belongs to the Alien and Sedition Acts of 1798. The "sedition" part was directly targeted at newspaper editors who disagreed with the ruling Federalists, at the time. Benjamin Franklin's grandson, Benjamin Franklin Bache, was specifically targeted for his Philadelphia paper the Aurora (Philly was the nation's capital at the time). He died of yellow fever before he could be convicted of sedition, but other Antifederalist publishers did spend time in jail for the "crime" of criticizing the government. A sitting member of Congress who also published a newspaper, Matthew Lyon, was jailed for sedition during this time period, and he subsequently won re-election to his House seat while he was in prison.

This may sound like ancient history, so let's jump forward a century, to the Espionage Act passed during World War I -- which is still in force today (although it has been revised a bit). Like its predecessor, this law was passed to target "sedition" -- which at the time was classified as anyone speaking out either against the war or against the military draft. Once again, the law was not used to prosecute spies so much as it was used to prosecute those who didn't agree with America's entry into the war. This is the law that put Eugene Debs in prison with a 10-year sentence. It was also the law used against a moviemaker who had done nothing more than create a film about the American Revolution. He was found guilty of sedition for merely portraying the British in an unkind light in his film (pretty hard not to do, when the subject is the Revolution) -- because Britain was now our wartime ally. He also received a 10-year prison sentence.

One case brought under the Espionage Act back then created two phrases most Americans still recognize, even if few know their origin or the case's actual name. But when the Supreme Court ruled on Schenck v. United States, it gave birth to both "a clear and present danger" and also "falsely shouting fire in a theater." The clear and present danger to the United States that the court ruled could be punished? The "fire" that was being falsely shouted? It was a one-page pamphlet being handed out to men eligible for the military draft, one side of which was titled: "Long Live The Constitution Of The United States." When read today, it's hard to understand why anyone went to jail for it. The "clear and present danger" was, in fact, that young men would refuse to accept being drafted. Oliver Wendell Holmes wrote, in upholding the conviction: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." Most Americans aren't even aware of what this court case was about, even if they do recognize snippets of this ruling, which put rather large and arbitrary limits on the First Amendment.

In World War II, the Espionage Act was used to deny a mailing permit to fervent F.D.R. critic Charles Coughlin, which killed the distribution of his Social Justice. The Attorney General at the time also attempted to use it against other "vermin publications." From this point on, subsequent Supreme Court rulings have put much stricter limits on how the Justice Department can act towards reporters -- the most famous being the "Pentagon Papers" case in the Vietnam era. A new legal standard for the press was thus created, one in which reporters cannot be held in jeopardy for printing government information which has been leaked to them. Many news organizations, to put this another way, have printed portions of the "Wikileaks" documents, but none have been accused of any crime for doing so. This is supposed to be the new, modern standard.

This is what makes the Justice Department's recent actions towards the media so disturbing -- because it represents a step backward to a much uglier time, with fewer legal protections for the press. There is a very fine line between targeting leaking and targeting the media who print the leaks, and sedition laws were often passed with the specific intent of reining in unruly press as their main objective. This is historic fact. When the Justice Department applied for a warrant to search the emails of Fox reporter James Rosen, it specifically stated that he might be a "co-conspirator" with whomever leaked the information to him. Now the Obama administration would have us believe that Rosen was never the target, and there was no intent to ever prosecute him. Far from being exculpatory, however, this is even more disturbing, because of the misuse of the legal system it represents. The warrant application swore to a federal judge that Rosen was indeed a possible criminal, when apparently someone else was the real target. I fail to see how this is not lying to the judiciary branch, personally -- in a document signed by the Attorney General of the United States.

Historically, the federal government does not have a very good track record when attempting to interfere or intimidate its critics in the press. The press, in fact, is the only private industry even mentioned in the Constitution or the Bill of Rights. I have to believe that freedom of the press was prominently placed in the First Amendment for a good reason. That reason is to prevent the federal government -- even in wartime, and even over governmental secrets -- from ever using its power to threaten members of the press.

So, Attorney General Holder, forgive me if I so far have not been impressed with your "just trust us" attitude towards using the full weight of the Justice Department to root around in the communications of two prominent media organizations. The history of the federal government doing so is not a shining one, to put it bluntly. You are not on firm ground, you are at the top of a very slippery slope indeed. Signing a search warrant application accusing a member of the press with being a co-conspirator to espionage was a serious lapse in judgment. The only way to rectify this lapse now and insure it does not happen again is to throw the full weight of the Justice Department and the White House behind those in Congress working to create a new federal "reporter shield law" (and don't exclude the bloggers, either!). Because -- once again -- the First Amendment doesn't seem to be enough to stop such abuses. Which is disappointing, to say the least.


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