Obama has now insisted that he does not want to jail journalists for “doing their jobs,” but many don’t find his claim to be credible.
I think this is a teachable moment for Conservatives because Conservatives have insisted on all sorts of penalties for “Wikileaks.” In the United States legal system, a government can fire and prosecute government employees for releasing classified documents. What it cannot do, however, is prosecute any reporter or journalist. who receives such information, for printing it.
Since we all know there are times when the government might have a legitimate reason for keeping a secret, why are reporters and newspapers not liable to punishment for publishing those secrets?
The reason has to be that, even though the government may have a legitimate reason for such a secret, the only way to be sure that the government is not abusing its power is to allow the society that is under the government to, essentially, spy on its own government. This is especially essential in a democracy because voters need information. If a president can keep his actual decisions a secret then how can voters know whether or not to elect him to a second term? But in any government, allowing the government’s agents to persecute or jail people for giving us information means we can live under a tyranny and not even realize it.
In order to really understand the mindset behind the First Amendment, I recommend a treatise on another topic: Lysander Spooner on Trial by Jury.
Spooner delves into the history of the Magna Carta and argues that the jury in the court system is designed to be a brake on the state. The randomly selected jurors are society’s protection that can wreck the enforcement of not only inaccurate claims of fact about the accused, but even on the justice or injustice of the law itself. The state with its judges, legislators, and governors is all subject to the scrutiny of the jury. One gets a vision of a way that society can peacefully restrain the predations of the state.
This mindset, I think, opens up the First Amendment. The First Amendment promises that society will be left alone in what they say about any state of affairs, including in what they say about the government. But journalists are not supposed to merely say things; they are supposed to investigate things first.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
If only the freedom to say or write things was involved, then the freedom of speech and press would be one and the same. But the language covers all that the press does–including report on discovered facts.
“As part of its probe into the source of the details contained in the article, the Justice Department indicted a State Department analyst and obtained emails from Rosen’s private account, accusing the reporter of being a possible ‘co-conspirator’ in the case, according to court documents. NBC News reported that the Attorney General himself has signed the warrant to access Rosen’s emails.”
Rosen was not a “co-conspirator,” but a reporter pushing back against the state. The First Amendment authorizes him to do his job for “we the people.”