On Aug. 17, a federal appeals court refused to overturn the ruling, saying that even if Leggett is a legitimate journalist, “the journalist privilege is ineffectual against a grand jury subpoena, absent evidence of governmental harassment or oppression.”
Many news organizations and First Amendment advocates are worried that the government’s actions threaten freedom of the press by inhibiting sources. And, by refusing to release Leggett, they say, the government is sending a message to other nations that it’s OK to jail the press. In the Western Hemisphere, according to the Committee to Protect Journalists, there are just three journalists in prison for doing their jobs. Leggett is one of them; the other two are in Cuba. Recently NEWSWEEK’s Laura Fording talked to lawyer Floyd Abrams on the current state of the First Amendment.
NEWSWEEK: Do you see any trends in how courts are dealing with First Amendment rights?
Floyd Abrams: Probably the most important new development is that privacy, as a right, is being given equal legal status to the First Amendment itself. In one example, Hill v. Colorado, a case decided a few years ago by the Supreme Court, a Colorado law significantly limited the ability of those protesting abortions outside a medical facility to speak with people who had chosen to have abortions. The court treated the “right to be let alone,” a famous phrase of [U.S. Supreme Court] Justice [Louis] Brandeis, as essentially equal to the First Amendment right to speak out in a robust fashion. Just a few months ago, the Bartnicki case in the Supreme Court considered whether the press could be held liable for broadcasting information that had been illegally wiretapped by one person and then lawfully obtained by the press. By a 5-4 vote, the court said the press couldn’t be held legally liable. So the First Amendment prevailed. Still, the court went very far down the line toward treating privacy interests as essentially equal in weight to the First Amendment interest of broadcasting truthful information to the public.
When did the strengthening of privacy law start happening?
I think in the past five years we have seen an explosion of privacy rights against the press…. The [Supreme] Court had, of course, recognized privacy rights in Roe v. Wade-and there are many [cases] involving privacy rights against the government. But it is new to say there is a constitutionally rooted privacy right against the press itself….
Why has it happened?
With the growth of the Internet and the easy dissemination of available data, people are very concerned that the information they treasure will become widely known without their consent. Also, the press itself is none-too-well regarded by the public at large, and that includes the judiciary. A number of judges are simply not of a mind set to give the press a millimeter more than what they think the First Amendment absolutely requires.
According to a 2001 poll conducted by the Freedom Forum, 29 percent of people polled strongly agreed with the statement, “The First Amendment goes too far in the rights it guarantees,” and another 10 percent mildly agreed. Those numbers had increased from the previous year. Is there a public backlash against the First Amendment going on here?
I don’t believe the public thinks it is against the First Amendment-no one ever thinks she’s against the First Amendment. I’ve never met an opponent who doesn’t start out by saying, “I believe in the First Amendment as much as anyone, but….” The problem is that the “but” has been growing larger and larger in recent years.
Do you think attitudes toward the First Amendment reflect a shift toward conservatism across the country?
I don’t think it’s a matter of political conservatism. For the first time, in my experience, liberal jurists are as skeptical of the press as conservative ones…. I think the days of the 1970s, when one could reasonably predict that a liberally inclined jurist would likely rule in favor of the press is no longer true.
What kind of signals has George Bush been sending out?
Well, it’s very early. But so far, the signals have been disturbing. [Author Vanessa] Leggett is in prison in Houston on contempt of court charges for refusing to turn over notes and tapes that she gathered for a book [about a murder]. The Department of Justice supported her incarceration and did not appear to have applied what are known as the attorney general’s guidelines, which require the attorney general’s personal approval any time a journalist is subpoenaed by the U.S. government. The Justice Department’s position is that she isn’t a journalist. One can argue about that; still, under Attorney General [John] Ashcroft, the U.S. government certainly seems rather unsympathetic to free-press rights. At the same time, when Bush was governor of Texas, he essentially declared the public sidewalks off-limits for protests outside the governor’s mansion. Neither has he been too receptive to protesters since he became president. At Rocky Mountain National Park, his administration confined protesters to areas at least a mile away from the president.
Out of sight, out of mind.
More like out of sight, off television. Another thing: the president’s very first act in his new role was to reinstate what could be called an international gag order by signing a funding ban on any international aid groups that advocate abortion. So the price tag these groups pay for [condoning abortion] is no funding at all, with regard to anything. That too, raises at least some blinking yellow lights, if not yet red lights.
What do you make of all this?
It’s not a cliche to say that it’s too early to tell. The president has not been faced with any situation yet-or by any publication-that his administration has viewed as imperiling national security. Still, the signals are disturbing. When Talk magazine published an article with mock photographs of the president’s daughters after their [run-ins with the law] for underaged drinking, the White House cut the magazine off. On a personal level, one can understand that the president would be upset about adverse references to his daughters. But as president, he should be able to rise above any sense of personal irritation and recognize that White House information belongs to all of us, and it’s really not for him to decide which magazines are disfavored because of what they cover.
How about Ashcroft’s views on the subject?
Before he became attorney general, Ashcroft took positions which were certainly troubling. He led campaigns to abolish funding for the National Endowment for the Arts; he supported legislation-later held unconstitutional-which sought to censor communications over the Internet; he backed a constitutional amendment that would allow public schools to subject students to required prayer. But all of those are pre-attorney-generalship. If I had to look only at the past few months, I would point to the example I cited earlier, of Ms. Leggett. The Department of Justice, after all, was the entity that did not prevent her from going to prison and, indeed, participated in the effort to have her jailed…. It has been 10 years since any federal court ordered a writer jailed for refusing to turn over materials. Of course, these are not necessarily orders from the top. But one would like to see an order from the top stopping it. It would certainly send a more positive signal from Attorney General Ashcroft if the Department of Justice would speak up in favor of Ms. Leggett’s rights.
Are more and more First Amendment cases being taken to the courts these days?
[Laughs] It sure seems like everything gets to the courts these days. On the other hand, back in the ’60s, people were arguing that sleeping in the park and the right not to have a haircut was protected by the First Amendment. So some of those more creative and expansive First Amendment articulations are not being made as much. What’s new is that new technology is leading to new legal challenges. [There are] more and more Internet-related lawsuits, more and more lawsuits and legal challenges relating to encryption and digital protection and a range of other things that we wouldn’t even have thought of just a decade ago….
What about advances in technology? Are they helping or hindering First Amendment rights?
Both, I’m afraid. The advances in technology help by providing more information, more cheaply, to more people than ever before. At the same time, everyone [becomes] an editor and a publisher on the Internet. While that’s a major contribution to the fulfillment of First Amendment interests, with more information comes more false information. We’ve never had a medium of communication that had more unreliable information than the Internet. And we’ve never had a means of communication so favored by speakers who engage in hate speech and pornographic speech as the Internet. So there is a price to be paid for the technological explosion, and we are paying it. On balance, it’s still worth paying.
What about congressional support for free speech?
We will see more legislative battles. Last year, the House and the Senate passed a law that would have made it a crime for any federal official to leak any classified information. President Clinton vetoed that bill [but] we could have a revival of it. One way to judge the Bush administration in terms of the First Amendment will be by watching the position they take on this issue.
Why?
We’ve never limited the range of information that the public gets about the government to what the government wants the public to read. Instead we’ve depended on journalists to seek out information and provide it to the public. All sorts of information is classified-millions and millions of documents. There was a time when the White House menu was classified. The system has often been used to classify information that the government would rather not have out because it would make officials look bad. And yet legislation almost got through last year which would have made it a crime to release any [classified] information, no matter how valuable it was to the public and no matter how totally innocuous the harm to national security. It was a flat rule saying, “If anyone in the government releases any classified information, it’s a crime.”
What’s your take on this type of legislation?
We have lived without that law for many years and have had a country that functioned well. When the country did not function well it was often for lack of information rather than too much information. Senator [Daniel Patrick] Moynihan wrote a study for the Congress a few years ago on secrecy and later wrote a book called “Secrecy” in which he wrote the line, “Secrecy is for losers.” And legislation of this sort-that may yet come back to the Senate-is also for losers. I think the public would lose valuable information without serving any legitimate government interests. If the administration pushes for or supports legislation which would criminalize all governmental leaks, it will be sending a very disturbing signal about it’s First Amendment orientation.
