I have been a big fan of the WSJ’s editorial page. The rest of the paper is filler for the recycle bin. There are some things that I disagree with the Journal on – such as immigration – but on the whole they have been on the side of the angels.
So it is with a great deal of sorrow that I have to say that today’s “Rule of Law” opinion piece by THEODORE J. BOUTROUS, Jr. is a piece of tendentious crap.
While the subpoenas and contempt orders that came out of the Valerie Plame leak investigation sent a shiver through journalists and other champions of a free press, an equally chilling lawsuit between two congressmen slowly plodded through the courts, barely noticed. No longer. Now, the D.C. Circuit has made a ruling in this dispute that, if it stands, will blow a hole through the First Amendment.
The opinion piece give us a history of the case Boehner v. McDermott in which the
“D.C. Circuit upheld a $60,000 judgment for statutory and punitive damages against Mr. McDermott. (Mr. Boehner is now claiming an additional $500,000 in attorney's fees.) Since Mr. McDermott supposedly knew that the tape had been illegally recorded when he received it, the court ruled that he got it "unlawfully" and could be punished, like someone who "is guilty of receiving stolen property."
Boutrous then goes on to state:
It can be extremely tempting to scale back on traditional First Amendment freedoms in the area of national security during war time. The government does have the right to protect information in the name of national security and other compelling interests, and to impose secrecy obligations on government officials to avoid harmful disclosures. But the First Amendment, as a check on government power and an instrument of self-government, tasks the press with ferreting out information that the government wants to keep secret. [Italics mine]
Whoa! To be sure that I was not hallucinating, I pulled out my pocket Constitution and re-read the First Amendment. My version reads:
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
Strangely enough, there is no reference here to the press ferreting out government secrets and publishing them. There is no reference to the press ferreting out my secrets and publishing them, or Mr. Boehner’s, or – for that matter - anyone else’s.
Now I’m not saying that the press may not want to publish secrets so that it can satisfy the prurient interest of certain readers and thereby charge ever higher advertising rates, but that is a business decision made by the paper’s owners, not part of the First Amendment.
It should be obvious, even to Mr. Boutrous, that the First Amendment's restriction on Congress from writing laws prohibiting a free press is not a hunting license for the press. Read the First Amendment again: it puts free speech by individuals, the freedom to worship and a free press on the same plane. It does not elevate the press above the people. It does not elevate the press above the laws that apply to a free people. It does not allow them to do anything to anyone without penalty.
To defend the publication of secrets Boutrous states:
That information, after all, really belongs to the people, who have delegated the power to govern to elected officials.
Well, yes. And those elected officials have decided that certain government actions should be kept secret because their revelation will help an enemy kill us. It does not behoove the press to attempt to elevate itself above the people and their representatives. To do so is to create a self created, unelected super-legislature; a group of superior beings whose will stand above the will of the people and their representatives. That is an incredible amount of hubris for a commercial enterprise. It may be more credible in a country with authoritarian leanings. But in a representative Republic, not so much.
It is especially unfortunate for the press that it should attempt to elevate itself above the people and its elected officials when there is a major scandal brewing about the press’ publishing faked and staged pictures designed to lie to its readers about what happened in Lebanon.
Sometimes the only way the public can learn about government wrongdoing, or questionable government policies, is through leaks.
That may be true, but it’s also irrelevant. If the leaks are stolen information, the press is acting as a “fence.” Fencing stolen good is illegal for ordinary people, and the press is made up of a whole lot of ordinary people. More ordinary, in many cases, than most.