ASSAULT ON PRESS FREEDOM

In a nation that preaches the virtues of democracy, the United States government has consistently eroded the media's ability to report and, by extension, undermines the ideals it professes to uphold

- William Bennett Turner
Sunday, November 26, 2006


Vladimir Posner, the former Soviet journalist, used to claim the press was freer in the Soviet Union than it was in the United States. This was during Glasnost, as the Soviet empire was disintegrating. Posner explained that the government was dysfunctional, so journalists did not have to worry about the official censors, and the media had not been privatized, so journalists were not accountable to commercial sponsors and advertisers. The result was a kind of anarchic freedom. The press was free, but only for a brief window in time.

The window in America once was open wide and, I thought, permanently so. I used to tell my students on the first day of class that we had the freest speech and press in the world. I can't do that anymore.

In recent years American press freedom has eroded. Many other countries are now ranked freer than the United States -- all of the Scandinavian countries, Belgium, the Netherlands, New Zealand and many others. In the most recent survey by Freedom House, an independent American-based organization that assesses liberties around the world, the United States tied for 17th place, with the Bahamas, Estonia, Germany and others.

The international free-press advocates Reporters Without Borders ranked us 53rd, tied with Botswana, Croatia and Tonga. These rankings may not be scientifically valid, for a lot of subjective judgment is involved. But it is sobering to see the consensus that the United States is no longer anywhere near the top.

By virtue of Supreme Court decisions, the U.S. press remains freer than the press elsewhere in a few respects.

First, our law provides significantly greater protection for the press against libel suits, especially by government officials. In many countries, libel is a bullying tool for officials and the powerful to silence dissent. Under the 1964 decision in New York Times vs. Sullivan, insults, parodies and vicious criticism of officials are protected by the First Amendment.

Second, our law protects the press against almost any attempt by government to impose a "prior restraint" on what can be published. That is, the government is not allowed to censor, in advance, information the press may wish to publish. The famous "Pentagon Papers" case in 1971 allowed the New York Times and the Washington Post to publish information about a classified Defense Department study on American involvement in Vietnam, despite the government's contention that publication would impair national security.

Third, perhaps unique in the world, our law protects the advocacy of dangerous, potentially divisive ideas. One can preach overthrow of the government -- domestic "regime change" -- religious hatred, racial discrimination and even criminal activity. Under the Supreme Court's 1969 decision in Brandenburg vs. Ohio, government may not suppress ideas, however repugnant to most, unless their expression amounts to incitement to imminent unlawful acts.

It also is true that American journalists have not been physically attacked based on what they report, at least at home (although overseas, some have been, and one was beheaded). In some other countries, journalists risk harassment or worse for reporting that offends government officials or powerful figures. The Committee to Protect Journalists reported that 47 journalists were murdered last year.

But U.S. press freedom has been slipping away since Sept. 11, 2001. Now that we are in a seemingly permanent "war" on terrorism, the government claims wartime powers that result in restricting press freedom.

The Bush administration has multiplied exponentially the number of documents it classifies as secret, shielding them from public view. It has classified literally millions of documents "top secret," according to reports filed with the National Archives; and the office of Vice President Dick Cheney claims to be exempt from reporting even the numbers of records it brands with the "classified" stamp. (The administration has also tried to retrieve antique classified documents from columnist Jack Anderson's estate, contending that only the government may possess such documents, however old.) Within weeks after 9/11, President Bush issued Executive Order 13233, allowing him to veto public release not only of his own presidential papers but those of former President Ronald Reagan, Bush's father and former President Bill Clinton.

The administration also is aggressively pursuing leaks, not with a Nixonian Plumbers unit but by threatening criminal prosecution. Some Republicans in Congress have called for Espionage Act prosecution of the New York Times for publishing revelations about the National Security Agency's monitoring of communications by U.S. citizens and tracking international financial transactions. Bush himself said it was "disgraceful" for the Times to reveal these government activities and publishing the security agency's leak was "helping the enemy."

Pursuing leaks inevitably means pursuing the reporters who received and published the leaks, forcing them to give up confidential sources or telephone records or go to jail. Whatever Judith Miller's motivation and however questionable her arrangement with "Scooter" Libby, she went to jail solely because she refused to reveal communications with her source to the federal grand jury.

Although all states (except Wyoming) legally recognize some sort of privilege for reporters to protect the confidentiality of sources, there is no federal shield law, and the Supreme Court held in 1972 that the First Amendment does not itself serve as one, at least where the information is sought by a federal grand jury investigating a crime.

So reporters who dare to report leaked information that may be classified, or information about testimony before a grand jury -- as Chronicle reporters Lance Williams and Mark Fainaru-Wada did in the BALCO proceeding about steroids in sports -- face subpoenas requiring them to reveal their confidential sources to grand juries or go to jail. And now, Williams and Fainaru-Wada have been ordered to serve as much as 18 months in federal prison, a ruling they have appealed to the U.S. Court of Appeals in San Francisco.

So far, the courts have refused to protect subpoenaed reporters no matter how important the information they unearthed or how insignificant the alleged crime. It is true that reporters have never had strong protection against federal subpoenas, but they have hardly ever needed it. Until now.

One of former Attorney General John Ashcroft's first post-Sept. 11 acts was to issue a directive to federal agencies restricting access to government records under the Freedom of Information Act. Ashcroft's directive effectively reversed the presumption of openness and told agencies not to allow inspection of records if there was any arguable basis for withholding the records, assuring officials that Justice Department lawyers would defend them if sued.

Ashcroft's Justice Department also proceeded to round up mostly Muslim immigrants and conduct deportation hearings in secret, not allowing the press or public even to know that any hearing took place, which caused one federal judge to remark that "democracy dies behind closed doors." Ashcroft's moves toward greater secrecy were of a piece with Cheney's refusal when sued under the Freedom of Information Act to disclose even the identity of the corporate executives he met with to determine the administration's energy policy.

Unlike in Sweden, where the right of access to government documents is enshrined in the Constitution, our 1966 information act is solely a legislative creation. Unlike in South Korea, where the Supreme Court decided in 1989 that the right of access to government documents was an integral part of the constitutional freedom of the press, the U.S. Supreme Court held (in a case I lost, Houchins vs. KQED) that there is no such thing as a First Amendment right of access to government information or facilities. Consequently, Americans' right to know what their government is up to is not as well recognized as it is in some other countries.

Nor is government propaganda healthy for a free press or the citizenry. The Bush administration did not advance press freedom by producing and canning favorable "news" stories with fake reporters and peddling them to television stations, or by clandestinely paying friendly columnists for publishing opinions supporting administration policies.

Other recent U.S. government actions also cut into press freedom. The Federal Communications Commission's campaign to stamp out "indecency" and "profanity" in the broadcast media, with congressionally increased fines of $325,000 per violation for allowing a breast to be glimpsed or a dirty word uttered, has intimidated broadcasters.

The campaign may initially have been aimed at Howard Stern, but it puts at risk serious programming like a CBS documentary on 9/11 in which strong language escapes from the lips of firefighters and others in the inferno, "Saving Private Ryan" and even Masterpiece Theater's "Prime Suspect." Other countries like Sweden are bemused by American prissiness about sex and impose no comparable restrictions on their broadcasters.

The press is free in countries that trust the people to make wise decisions when they're fully informed, countries that remain willing to take the risks of dissent, rude discourse, instability and some insecurity, that tolerate eccentricity and unorthodox ideas. The erosion of press freedom in the United States, relative to other nations around the world, is disheartening. We have always had high expectations of freedom, which we now don't live up to.

It is hard to stomach the hypocrisy of claiming to spread democracy abroad while restricting at home the very freedoms that make democracy possible.

William Bennett Turner is a San Francisco lawyer who teaches a course on the First Amendment and the press at UC Berkeley. Contact us at insight@sfchronicle.com.

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