“A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps both.”–James Madison
In 1971, The New York Times won a landmark lawsuit protecting its right to publish highly classified information pertaining to the government’s role in the Vietnam War that had been leaked to the publisher. The Times’ victory in the Pentagon Papers case would solidify one of the most crucial tenets of First Amendment law, permitting the media to publish any information of “material interest” to the public, notwithstanding how it was acquired or its degree of confidentiality, with immunity from civil and criminal liability. Moreover, this protection extends to the purely speculative and to fodder; meaning that the press cannot be sued for libel, even when it repeats salacious gossip directed towards the president or a government official.
Now, decades later, two popular legacy media sites–The New York Times and the Washington Post, ironically the same companies involved in the Pentagon Papers case–are exploiting this exception to advance its war with President Trump.
In recent weeks, mainstream media has relished in this privilege, circulating details ascertained from top secret communications recorded by the NSA between members of President Trump’s cabinet with Russia. Thus far, the fallen are causalities by proxy to President Trump. Retired Lt. Gen. Michael Flynn resigned following a Washington Post article that had printed partial transcripts of his telephone conversation with Russian ambassador Sergey Kisylak prior to becoming national security advisor. Similarly, Attorney General Jeff Sessions’ recusal from matters concerning Russia arose out of an article in the Times that disclosed excerpts of what was an innocuous discussion manipulated into sensationalism with Kisylak that also had occurred prior to his appointment.
I respect the historical jurisprudence of our judicial system when it comes to First Amendment laws, and its decisions that both promote and expand the right to free speech. However, such absolute guarantee afforded to the media under New York Times Co. v. the United States cited above is in reality always coupled with the modus operandi of these corporations. Thus, I’d argue that the motivations behind the Times’ and WaPo’s decision to publish this leaked information regarding Trump’s administration isn’t to benefit the American public; rather, it’s based on righteous indignation, a sort of taunting that manifests from the knowing that they can’t be sued for reeking political havoc. It’s a psychological game wherein these humiliated entities are seeking revenge by furthering an nefarious agenda to compromise the judgment of the President and embarrass his administration.
These two publications in particular have undeniably been the driving force behind Trump’s media ruin. Ironically, both entities have maintained long-standing ties with the CIA vis-à-vis its notorious “Operation Mockingbird” (“Op Mock”) project; a relationship wherein these publications have disseminated conspiracy theories at the behest of these agencies. Furthermore, in recent years, it has come to light that the FBI has additionally enjoined itself into the practice of manufacturing artificial news. However, unlike the CIA that recruits and assigns certain columnists to perform spy duties, the FBI has been caught—and consequently sued for—impersonating journalists for the specific purpose of procuring information about subjects.
Although the Op Mock program has been in existence since the 1950s, as recently as last year, former CIA director Michael J. Morrell authored an op-ed piece in the Times. Morrell contended “In the intelligence business, we would say that Mr. Putin had recruited Mr. Trump as an unwitting agent of the Russian Federation.” His affirmation wasn’t based on any evidence that then-candidate Trump was in collusion with Putin and/or the Russian government; conversely, such speculation was premised on Trump having said, “Mr. Putin is a great leader.” Therefore, instead of respecting Trump’s diplomacy towards the leader of a country that has been aggressively fighting a war on terrorism with our mutual enemy, ISIS, and attempting to build a bridge with a long-standing adversary, Morrell extrapolated innuendo, and susequently dedicated his piece to incriminating Trump and tainting the public’s perception of his candidacy.
Additionally, in November, a WaPo article accused more than 200 independent news sites of advocating in favor of Putin and against Hillary during the election campaign. Similar to the Times, “Russian propaganda effort helped spread ‘fake news’ during election, experts say” referenced no proof whatsoever to base its contention on, and instead relied on allegations made by ProporNot—an unheard of organization operated by anonymous parties—to support its argument that Clinton lost the election because of Russian interference, not the fact she’s a well-educated deviant whose criminal acts were responsible.
These leaks of highly confidential information concerning attempts to elucidate confirmation of Trump’s non-existent financial activity with Russian banks, and innocent conversations with foreign dignitaries that have subsequently led to members of Trump’s cabinet to suffer unwarranted public and partisan scrutiny, are treasonous. Craig Timberg’s article accomplished two things: one, it perpetuated the “Russians did it” conspiracy theory, and two, it revealed that the WaPo’s seemingly dormant relationship with the CIA had become re-activated.
The foregoing proves that yet again, the Times and WaPo have roused the use of propaganda in lieu of fact-based reporting, thus solidifying their reputation as “fake news.”
President Trump, not unlike his predecessor Thomas Jefferson, has been, and continues to be, sabotaged by the press. This onslaught of derogatory, if not libelous per se, storytelling that began prior to Mr. Trump being elected commander-in-chief has resulted in a perilous battle between truth-telling and manufactured news. Under most circumstances, instances where the media knowingly prints falsehoods is considered libelous, which in turn allows the defamed party to sue for damages related thereto. However, regardless of the truthfulness of the myriad assertions that Trump has engaged in grafting (“pay-for-play”) with the Russian government in order in exchange for its “influencing” the election and the outright accusations claiming he’s a Russian agent, both of which remain unsupported by any evidence, because of the Pentagon Papers case, neither Trump nor his cabinet have legal standing to sue the media entities responsible for publishing what amounts to hearsay and rumor.
Critical to the New York Times Co. decision is the recantation of the Prior Restraint, a criteria that required that restraint be imposed prior to the publication of information pre-publication. Simply put, eliminating this requirement prohibits the government from attempting to or banning the expression of ideas prior to publication. Before, by securing a court injunction under the prior restraint rule, the government could either delay and/or quash the distribution of sensitive information to the public. Thus, the media is able to print even the most sensitive of information without the threat of government interference or being sued as a result. The Court found that the public’s right to know supersedes the need to protect members of the government and the activity thereof.
Although the media enjoys the benefits of this absolute privilege under First Amendment laws, alternatively, sources and journalists do not. Removing confidential information and acting to transmit this information to the public is a felony. Additionally, in 2000, Congress passed legislation that makes it a criminal act to leak any form of classified information. Hence, it isn’t the sensitivity of the information per se that makes leaking classified information to the public prosecutable; instead, it’s the act of doing so that can result in an individual being prosecuted under the Espionage Act, which is defined as a collection of various laws, certain of which can be applied based on the type of information disclosed.
In addition to the foregoing, I’d further argue that the person(s) responsible for the recent leaks is (are) guilty of treason. The release of top secret information to sabotage Gen. Flynn and AG Sessions and compromise their respective positions within the current administration is an act intended to disrupt and/or overthrow our government.
In addition, despite the existence of shield laws, such tutelage is not absolute. A notable exception to this source protection is when a journalist is in possession of information that relates to or compromises national security. In such cases the courts have regularly compelled reporters like Judith Miller to disclose source identities. Failure to cooperate can result in a contempt charge and jail time, which was the result in Miller’s case.
The right to free speech is the most quintessential of our civil liberties. Like a malignant cell, the proliferation of biased media has increased exponentially during the recent election cycle. Similar to an aggressive form of cancer, the voracity of disinformation at the directive of a few continues to spread, infecting the principal role of a free press in our society from an arbiter of truth to a soldier defending the Intelligence Agency’s mafia of storytellers. And recent history suggests that this disease is steadfastly resistant to any cure. Americans are unequivocally being ravished with distorted truth.
A free press is a privilege, something corporations like the New York Times and the Washington Post seem to forget. It’s the media’s responsibility to disseminate truth to both educate and increase awareness, not to beget political pandemonium and civil unrest.