FREEDOM OF THE PRESS

Dennis Reeves Cooper, Ph.D

Over the past couple of weeks, I’ve been writing about topics related to mass communication– because that’s a topic I know about. I told you about the Theory of Agenda Setting, which holds that, while the press is not very effective in convincing people about what to think; it can be quite effective in telling people what to think about. And I told you about propaganda– including that fact that the word dates back centuries to the Catholic Church’s efforts to propagate the faith. This week, I want to remind you that, while the freedom of the press is protected by the First Amendment, there are still government officials at every level trying to dilute that freedom.

“Congress shall make no law abridging the freedom of speech or of the press . . .” That’s the quote from the First Amendment. The Founders gave the press such extraordinary protection because they saw the press as not only a government watchdog, but also as a catalyst for the discussion and debate of ideas. Aggressive press coverage of government activities is at the core of American democracy. Although the concept of “no law” seems pretty definitive, there are some in the government, federal as well as local, who are always looking for ways to weaken the press’ watchdog role.

Let’s take the subject of “confidential” or “classified” government documents, for example. At the federal level, it is against the law for government officials, employees or contractors to leak classified government documents to anyone– including leaking those documents to the press. At the local level, there are no laws that make leaking confidential information (like information concerning ongoing police investigations) to the press– but, certainly, if the leakers are caught, they can be disciplined or fired. But there is a conundrum here. While there are often good reasons to try to keep some documents secret, it is not uncommon for government officials at all levels to label some documents as classified or confidential solely to hide corruption and/or incompetence. Those are the documents that members of the public need to see– and those are the documents that the press should be digging out and publishing. And it is not illegal for us to do that. But there are those in government who continue to try to make it illegal.

For example, in recent months, President Obama’s Justice Department has subpoenaed emails and phone logs of reporters to try to identify who is doing the leaking to the press. In one affidavit, the Justice Department accused a reporter of actually conspiring with an indicted leaker, exposing the reporter to potential prosecution for doing his job as a reporter. In another case, a reporter was threatened with jail time for refusing to testify against a defendant in a document-leaking case he wrote about. Over the years, a number of reporters have been threatened with jail unless they revealed their sources. I am not aware of any of these examples of threatened prosecution of journalists being successful. But even when they are unsuccessful, they can have a chilling effect on both reporters and sources– which may be the whole idea behind these government threats in the first place.

The reason that government officials have been unsuccessful in trying to make publication of classified documents a crime is a landmark Supreme Court case that dates back to 1971– New York Times v United States. The case involved a classified Defense Department report known as the “Pentagon Papers.” Among other things, the report documented that government officials had lied to the public and to Congress during the years leading up to and during the Vietnam War. When President Nixon learned that the report had been leaked to the press and that the New York Times was planning to publish it, he asked for a temporary injunction and got it. The New York Times appealed that order and the case quickly moved through the courts up to the Supreme Court. Editors at the Times argued that the First Amendment guaranteed them the right to publish the information without government censorship or punishment. The Supreme Court agreed. “The need for a free press as a check on government prevents any government restraint on the press,” wrote Justice William Douglas.

If you are a longtime reader of Key West The Newspaper (the Blue Paper), you may recall that back in 2001, then-Police Chief Buz Dillon had me arrested and jailed for publishing information about an internal police investigation. While my case was certainly not on the same level with the Pentagon Papers case, I was also protected by the First Amendment and the 1970 Supreme Court decision. Not only were all charges against me dropped, the ACLU came in and the law Dillon used to have me arrested was declared unconstitutional– and the City bought me a new sports car.

In essence, we made new law. Before Cooper v Dillon, citizens who made a complaint about a police officer anywhere in Florida were prohibited from providing information about their complaint to the press or anyone else. The stated purpose of that state law was supposedly to protect the reputations of police officers. After all, we wouldn’t want unproven complaints by off-the-street nutcakes to get coverage in the press, would we? At the same time, the police department here had (and has) a fulltime employee whose job is to feed information to the press on a daily basis about citizens who are arrested and the unproven charges against them. Go figure. That restriction on free speech was the state law that was declared unconstitutional. Also, when the Citizen Review Board (CRB) was set up to accept complaints about local police officers, this transparency was built into the City Charter amendment that created the CRB and which was approved by the voters in 2002. Any complaint received by the CRB is immediately a public record.

If you make a complaint to police internal affairs (IA) and they tell you that you are not allowed to talk to the press about it, they are breaking the law. Call the CRB immediately at 305-809-3887. In fact, if you haven’t filed your complaint with IA yet, file your complaint with the CRB instead. The first thing they will do is ask the KWPD to investigate your complaint and they will follow up to make sure that your complaint is really investigated.

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Dennis Reeves Cooper founded Key West The Newspaper in 1994 and was editor and publisher for 18 years before he retired in 2012. He has a Ph.D in mass communication.