Events of just last week reveal a full-on assault on the First Amendment. Since it seems our government has forgotten, the First Amendment 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.
There are no exceptions in the text, but in practice, more and more often our government only applies the First Amendment when convenient.
"Free Exercise of Religion" – EXCEPT for Muslims. Last week a Muslim-American toddler was removed from an airplane for being on the no-fly list. And this is just one of many recent policies unjustly targeting Muslim-Americans, from racist law enforcement training materials, to surveillance in Mosques, to prosecution under material support for terrorism laws. Even the New York Times has published commentary on the "Separate Justice System" for Muslims.
"Freedom of Association" – EXCEPT with dissenters, as evidenced by the Storm Trooper-esque police force that literally beat back peaceful protesters at Chicago's NATO meeting:
Some among the hundreds of officers repeatedly struck protesters with police batons
"Freedom of Speech" – EXCEPT for whistleblowers. The prime example is of course National Security Agency (NSA) whistleblower Thomas Drake, who blew the whistle on billions in waste at NSA, the rejection of a functional program that could have prevented 9/11, and invasion of Americans' privacy only to be forced out of NSA, targeted with a criminal investigation, and ultimately indicted under the heavy-handed Espionage Act. The case against Drake imploded days before trial after widespread media coverage and adverse rulings in Court, but that hasn't stopped the Obama administration's war on whistleblowers. The latest to be indicted is Central Intelligence Agency (CIA) whistleblower John Kiriakou, who refused to engage in torture and blew the whistle on waterboarding. Not quite the target of a criminal investigation – though the State Department threatened as much – whistleblower Peter Van Buren is in the process of being fired from the State Department – an action the ACLU says is a violation of his constitutional rights – for exercising his First Amendment rights to speak and write on matter of public concern, namely massive reconstruction fraud in Iraq.
"Freedom of the Press" – EXCEPT for "unauthorized" coverage. In the prosecution of former CIA officer Jeffrey Sterling last week, the Obama administration assailed the "reporter's privilege" (which it insists on putting in scare quotes) in front of the Fourth Circuit Court of Appeals. Even the most conservative court in the country had its doubts about what the Justice Department was peddling. (Not to mention the oppressive tactics used to suppress speech of journalist and documentarian Laura Poitras every time she returns home to the U.S.)
But, back to attempts to force journalists to testify about their sources. The Justice Department argued that Jim Risen of the New York Times should be forced to testify against a source (Sterling), who is alleged to have provided information to Risen about a botched CIA program called "Merlin" in which we gave flawed nuclear information to Iran. . .but whoops . . . the flaw was so obvious that the Iranians detected the ruse and we actually ended up giving them useful nuclear design information.
Risen has been subpoenaed three times (once by Bush and twice by Obama). The lower court eloquently articulated what prior legal precedent unquestionably supports, that:
A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook.
The primary legal precedent is Supreme Court's landmark Branzburg v. Hayes decision in which Justice Lewis Powell's concurrence emphasized the "limited nature" of the decision against the reporter when he stated:
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege does indeed exist, but was simply not warranted in the specific case of Branzburg.
In the Sterling case, when Judge Robert Gregory asked the Justice Department (DOJ) attorney to explain why the circumstances in Sterling's case was outweighed by the public's interest in a free press, the DOJ attorney said
I don't think there would be a balancing test because there's no privilege in the first place.
Judge Gregory wasn't buying it.
. . . Gregory, sharply criticized prosecutors’ contention that the Constitution offers no special protection to a reporter who is a witness to a particular type of crime: the unauthorized disclosure of government secrets to that very reporter by an official.
“The king always wants to suppress what they are doing — that is what is troubling,” said Judge Gregory, who stressed what he portrayed as the “public interest” in knowing about government misconduct that led the framers of the Constitution to write the First Amendment.
Actions speak louder than words. We may have a President who speaks beautifully about freedom, and a Secretary of State who touts the values of Internet freedom abroad, but we the people need to pay more attention to the actions of our government, because the government's actions of late send a message vastly different from its words - and the message is a full-on assault on the First Amendment.
Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.