The First Amendment is the press’s bulwark, not politicians


Inspired by the tumult after we learned that President Obama’s Department of Justice had intruded in the professional and personal communications of Associated Press and Fox News journalists, Mr. Obama has urged the exhumation of the oft-proposed, never passed federal shield law. The irritated press, which despite its general enthusiasm for the president and his agenda has deplored these free range executive branch efforts to punish government leakers, expresses muted unhappiness and encourages dialogue on the matter of the First Amendment.

There are various schemes for propping up the newspaper business nationally. Surprisingly, they are popular among some newspaper people, but especially among newspaper people for whom the center of the news universe is Washington, D.C.

When newspaper folk need to inflate themselves, say, to get out of a tight scrape or to extract a favor from the hands of those they ought to be nipping, they (and we, occasionally, I admit it) refer to themselves as journalists. It’s a gassy way to attribute to themselves the presumed professionalism of a lawyer or a doctor, without having to go to law school or medical school.

All of these life support strategies are different, but each has two features in common with the others. One is that the intense lobbying by newspaper people — and yes, of course, newspaper folks do a lot of lobbying on their industry’s behalf while savaging lobbying done by other industries — requires recasting news into journalism and reporters into journalists, to blur the reality of what they’re doing. The other is that all these strategies require the smirking indulgence of at least two branches of the federal government that newspapers are meant to examine critically.

The newspaper industry, and The New York Times in its front lines, is tugging its forelock in sniveling supplication before the president and Congress for protection, because newspaper people are pretty sure that the general public, asked to furnish the same props to the news game, would reply with a rude gesture and a loud guffaw. In the opinion of their customers, journalists know, their favorables are way down in Congress country. Better to make the case for favored treatment to the Washington political class with whom they have relationships. And they know how those relationships work, that it is a two-way-street, that if the politicians scratch the news biz’s back, the news biz will need to scratch politely and generously in return.

News business leaders want a shield law that will protect their reporters and columnists from being hauled into court to confess the sources of the information that they publish. Among other issues, newspapers would like to avoid the costs of defending their reporters from the predations of federal and state prosecutors and from the rummaging through newspaper files and reporters’ notes in discovery.

And the way things are going in the news biz, they may want one day to be able to convert their money-making businesses into nonprofit corporations, for example like the Public Broadcasting Corporation, National Public Radio, or the National Endowment for the Arts, which would be eligible for tax advantaged public and private financial support . But that would derive from the relationships to which I referred in the paragraph just above.

A shield law has in the past escaped the House with bipartisan support, but — you won’t be shocked, will you? — went nowhere in the Senate.

The nation’s Founders knew better than to leave the freedom of the free press to the vagaries of the national political culture and its mandarins. They may also have foreseen an occasion when the press itself might be benightedly willing to put its First Amendment privilege on the table to be negotiated with some president or Congress. And they might have foreseen that newspapers that did their jobs would find themselves held in low regard by their own readers and the citizenry in general. Of course, the Founders, all of whom believed utterly in the principles set out in the Declaration of Independence, were politicians who haggled bitterly over the language of the Constitution. And, in touch as they were with both their good and not so good selves, they insisted on a Bill of Rights, to make adamantine Jefferson’s term, “unalienable.”

Certainly, the Founders could not foresee the development of the modern newspaper, the global information explosion, the Internet, the blogosphere, the web crawlers, news alerts, Facebooks, Googles or Twitters. Neither could they have imagined a newspaper industry so fat and happy with its double-digit profitability that it overlooked the heavy breathing digital information revolution that would cripple it, in cooperation with the global economic meltdown.

What they did foresee was the need to keep the Congress out of newspapering’s business. They knew what Congress was capable of, that what it might give, it might take away. They did not imagine that the hooligans who were the newspaper owners and writers of the late 18th Century would become the craven, late to the digital party journalists of the early 21st, looking for an indulgence from Washington, when they had the language of the Declaration, the Bill of Rights, and the First Amendment — “Congress shall make no law … abridging the freedom of speech, or of the press” — to depend upon for their defense.

Yes, but, the journalist supplicants will argue, if we depend on the courts and ultimately the Supreme Court to protect us as the Founders intended, we may be disappointed — as if the president and the Congress would never disappoint. The bulwark is the the First Amendment, the best and only genuine and enduring protection newspapers can hope for — apart from their own innovative business sense — in the face of a government and a public that has never really liked the news business and never will, as long as reporters do their jobs.

A version of this column appeared in 2009, during a spurt of witless enthusiasm for a shield law. DAC