When White House spokesperson Jay Carney said last week that President Obama’s administration believes the nation’s press should be “unfettered” as it pursues investigative journalism, it struck me as an odd — and very specific — thing to say. (Alexandra Petri thought so, too, and wrote about it for The Washington Post.)
Carney (who worked as a journalist before taking the White House job) said the nation’s press should be free to pursue whatever stories they want. What he deliberately did not say, however, was that the government would not punish the press for doing so.
As a student of media history, this immediately reminded me of Sir William Blackstone. He was one of Britain’s leading legal scholars of his day, and perhaps his most famous work was Commentaries on the Laws of England, which was written and published in the 1760s. Commentaries outlined British jurisprudence, and it had a huge influence on the development of America’s judicial system.
Blackstone’s Commentaries included a section on press freedom (Book 4, Chapter 11). As I wrote in my dissertation, Blackstone noted that having a press that was unrestrained by government intervention was an essential component of a free society. “But this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published,” he wrote. “To forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.”
Essentially, the nation’s press is free to publish whatever it wants, but the government may punish the press if the government chooses to do so.
Blackstone did not see this as having a chilling effect on publications. Numerous free press scholars throughout the following decades have disagreed with him strongly, myself included.
Using criminal law to threaten journalists with fines and prison terms is a highly effective deterrent. Shut up, stop snooping around, and keep your freedom. This violates America’s press freedom ideals, and it’s a major reason why our country moved practically all of our press laws over into the civil arena. In Blackstone’s day, a libel conviction sent you to prison. Today, you don’t have to worry about losing your freedom; you have to worry about losing your wallet.
However, President Obama’s administration has been using the Espionage Act to threaten journalists and the whistle blowers with whom they speak. It is a gross mischaracterization for the White House to say the nation’s press has “unfettered” ability to pursue investigative journalism — particularly of the government’s activities — while the Justice Department wields sledgehammers with the words “Criminal Law” etched into them. It has been shown time and again that the government has a penchant for classifying information that is not a threat to national security but rather an embarrassing revelation. What better way to keep both under wraps than threatening journalists with banishment to our penal system?
I say again, it’s a violation of our free press ideals, and I’m dumbfounded by the public’s unwillingness to grasp just how dangerous this chilling effect really can be. When a government oversteps its bounds and intimidates journalists — those who provide a necessary and, frankly, underappreciated service to this nation — everyone loses.
This is a return to Blackstone and his logic. He’s dead. His 18th Century British press theory should be, too.