The First Amendment, the press and justice

From the Summer 2003 issue of The News Media & The Law, page 7.

By John Solomon

When is enough, enough? It’s a question journalists ask each day.

Is my story long enough? Have I done enough reporting to flesh out details? Have we pressed sources hard enough to get to the truth? The insatiable pursuit of news in an era of 24-hour, nonstop news holes has all of us working harder and faster to produce a first record of history that today reaches farther across the globe than ever before. It’s a daunting task, and one I fear blinded me to a slow, creeping infringement on the basic tenet that American society would forever preserve a press free from government interference and censorship.

It took not one, but two unimaginable strikes by the Justice Department to awaken me to the consequences of this creeping infringement.

Before August 2001, I worked as an investigative reporter with the absolute confidence that I could interview sources and report on government conduct without fear of prior restraint or surveillance. And stories about First Amendment court cases, to me, were simply reading fodder for spare time.

My faith was shaken when I opened my mail in late August 2001 and found a letter from then-U.S. Attorney Mary Jo White in New York informing me that more than 90 days earlier, the U.S. government had obtained the records of incoming and outgoing phone calls from my home in an effort to identify my sources for a story back in May 2001 concerning the criminal investigation of then-Sen. Robert Torricelli.

The government repeatedly has assured The Associated Press I was never the target of criminal investigation nor suspected of wrongdoing. It subpoenaed my phone records without giving prior notice to AP as required by the Justice Department’s own regulations. And the government admits it did so in an effort to try to identify my sources and to keep me from reporting additional information it did not want made public.

These revelations caused a national media stir for several days and put the Justice Department in a defensive posture. Then September 11 happened. The furor ended immediately and understandably. Even I, though still numb from the experience, went back to work as usual reporting on the extraordinary events that gave rise to the war on terror.

Strike two came 18 months later. For weeks, AP had been trying to figure out why a package mailed from our Philippines bureau had never reached me in Washington. Federal Express claimed the package was simply lost and even paid our $100 insurance reimbursement. Then we discovered, quite remarkably, that the FBI was in possession of the package, which contained an unclassified, eight-year-old crime lab report from a terrorism case.

The package was intercepted by the Customs Service and turned over to the FBI without a warrant. It was kept without notice or due process. AP would never even have known about the interference had it not pressed relentlessly for answers.

The FBI now admits it acted wrongly and has returned the package more than nine months after it was first sent. Most chilling though, the FBI admits its purpose in secretly keeping the package was to prevent me from reporting certain contents of the report.

This second episode rekindles a core question — one I know I had not contemplated often enough during the course of those long days and nights reporting the news.

How far does the government think it can go to stop the publication of news by a constitutionally protected free media?

Sen. Charles Grassley (R-Iowa) the lone senator in Congress to speak out against these two intrusions on AP’s reporting, has asked that very question. One response he received is chilling in its implications for how far the government today assumes it can go to intrude on reporters’ First Amendment practices.

Assistant Attorney General Daniel J. Bryant wrote Grassley that the Justice Department believes obtaining a reporter’s home or work phone records is a perfectly legitimate and potentially quicker way to ascertain the identity of confidential sources.

“It is our view that obtaining a reporter’s home telephone records in order to identify a media source revealing protected wiretap information is completely justified in some cases,” Bryant wrote.

“Determining the identity of, locating and interviewing and/or giving

polygraph tests to all of the agents, prosecutors and defendants, secretaries, private attorneys, staff or other individuals with access to wiretap information may not be a reasonable alternative to issuing a subpoena for telephone toll records,” he added.

This is a marked change in the rules of the game. For years, leaks investigations were conducted through investigation of the potential sources, not the news media recipients. When Ken Starr suspected his press aide, Charles Bakaly, of leaking information during the Whitewater investigation, he interviewed and polygraphed his staff, and did not intrude on reporters’ phone records.

So why hasn’t this apparent threat to a free press caused an uproar?

Why aren’t journalists declaring enough is enough or demanding that more be done to insulate our profession from further such intrusions? I think the answers lie in my own casual observance of First Amendment cases before that momentous day in summer 2001. With so many deadlines approaching and stories to pursue, who has time to run these matters to ground? They’re time consuming, especially when the government can hide behind legalese for months at a time.

Quite frankly, I don’t want to play the role of a First Amendment cause celebre. I came to Washington to practice journalism, not defend its constitutional roots. I assumed our forefathers settled that issue more than 200 years ago. But my experiences over the last two years have opened my eyes to the slow, creeping and unabated intrusion upon American press rights.

It’s not one big event. It’s an adverse court ruling here, and an unabated government seizure there.

Now, despite all the clutter of my daily news budgets and deadlines, I ask, ponder and try to answer the question: When is enough, enough? It’s worth your time to ask the same.

John Solomon is AP’s assistant bureau chief in Washington, D.C., and oversees the bureau’s seven-member investigative reporting team.