By Corey Friedman
Terrorists? Check. Spies? Check. Killers, mob bosses and would-be assassins? Check, check and check. But journalists?
Federal prosecutors added reporters and editors to the list of people whose phone calls merit monitoring when they covertly seized two months of call records from Associated Press phone lines. President Barack Obama’s Justice Department sought the records while investigating a leak about a planned terror attack in Yemen.
If all prosecutors wanted to accomplish was figure out who leaked classified information to the nation’s largest news agency, their time and effort would have been better spent poring over the federal employees’ phone records. If the leak constitutes a crime, it would stand to reason that investigators should target those who broke the law.
The Justice Department’s data grab shows mistrust and suspicion of journalists rather than an earnest desire to solve a crime. It also betrays — at best — staggering ignorance of the First Amendment. At worst, it shows a willful disregard for journalists’ right to gather and publish news without government interference.
If the officials who spilled the beans about the Yemen terror plot violated military or civilian law, prosecutors are within their rights to investigate their activities until they can show probable cause to file criminal charges. But that investigation should center on the suspected lawbreakers — not journalists who did nothing wrong.
A robust body of First Amendment case law, including the 1971 Supreme Court ruling that the government couldn’t stop the New York Times from publishing the Pentagon Papers, holds that the news media is free to publish classified information so long as journalists obtained it lawfully.
If a bureaucrat with a high security clearance picks up the phone, dials the newspaper and gabs to a reporter about top-secret goings-on, he or she may be flagrantly violating federal law or agency policy.
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