Professor Roy Gutterman L'00: Free Press Under Attack
A Review of Attacks on the Press and a Justice’s Dissent
(Divided We Fall | June 17, 2021) When news broke this May that the Department of Justice had secretly obtained telephone records and email data belonging to CNN’s Pentagon reporter Barbara Starr, it set off more alarms that press freedom has been under attack.
The recent revelation builds on earlier reports that the DOJ under President Trump also obtained records from Washington Post reporters. These incursions into the sacred art of newsgathering happened in 2017. As shocking as this is, the revelations do not come as a surprise. President Trump had openly attacked the press before, during, and after his presidency.
Before this, most of Trump’s anti-press sentiment – which included casting the press he did not like as “the enemy of the people” – was simply vitriolic rhetoric. The surreptitious and illegal surveillance of the press mirrors the actions of dictators and authoritarian rulers. It also harkens back to a Nixonian enemies list, which included many journalists.
Beyond his rhetoric, during his presidency, Trump attempted to silence book authors with restraining orders and other litigation. His pre-presidency penchant for libel lawsuits, unsuccessful ones at that, were bad but not as concrete as the invasions of the newsgathering process made under color of government authority.
In fairness, the Obama administration aggressively sought to investigate and prosecute leakers, subpoenaing similar information from the Associated Press in 2013. However, after that scandal, the DOJ revised its policies in subpoenas against the press.
The Tightrope of the Press and Law Enforcement
Law enforcement authorities argue that in some circumstances, they may have to seek critical, sensitive information from media sources. These extremely narrow settings would pertain to serious national security investigations or, as the Supreme Court ruled in 1972, matters before federal grand juries.
The case, Branzburg v. Hayes (1972), was a consolidated set of cases testing the boundaries of the reporter’s privilege, the doctrine that would allow a reporter to avoid testifying in court or turning over information related to confidentiality that those reporters granted to their sources.
Branzburg emerged in the early 1970s and was an important precedent following a decade of cases from the 1960s defining the importance of the First Amendment and the press …