Ramsey Khalifeh
The freedom of the press, one of the only listed professions that is given specified rights in the United States Constitution, has been challenged and tested since the beginning of the nation’s independence. The unprecedented digital age, which introduced the widespread distribution of information, created more problems for the press, but even more opportunities. The tug-of-war between the media and the government is everlasting and we’ve seen many historical instances of this dynamic.
After the press’ win following the 1971 Supreme Court decision to remove the federal government’s prior restraint on major publications after publishing the Pentagon Papers, freedom of speech looked to be fully uncontested. Scholars argued, however, that there was an asterisk on that decision, questioning what national security really meant.
So, what does national security mean and how can the government identify these threats when assessing potential restraints to the press publishing? What actions can the government commit in response to leaked information? These questions are crucial in understanding the crackdown on the distribution of sensitive information in the aftermaths of 9/11 and the rise of global terrorism. This unfortunate American tragedy changed the climate for journalists forever.
Prior Restraint
The founding fathers of the United States saw the imposition of prior restraint to be “detrimental to democracy” (Baracskay). The common law in Britain was interpreted historically to oppose the prior restraint of speech and the press, which as a result became a reference for law during the Constitutional Convention of 1787 (Vile).
Following American history since its inception of the Constitution and the role of the free press, many court cases challenged the government’s attempts at restricting the rights of journalists. The Pentagon Papers represented how the rise in literacy rates and the expansion of news publications meant more information was being shared across the country.
“That was a real turning point for the press. I think that was one of the times … when the press was asserting authority and freedoms,” William McKeen, the chairman of the Department of Journalism at Boston University, said in a sit-down interview. “There was a sense that that decision empowered the press to sort of truly be the fourth estate and make its own determination.”
The statements made by the majority ruling of the Pentagon Papers echoed similar sentiments on the role of the free press. Justice William J. Brennan Jr. concluded in his remarks that prior restraint would be allowed in certain circumstances, but the vague and ambiguous framing of “national security” made the case insufficient to allow censorship from occurring. The vagueness of the term becomes important later.
Although the press won, the varied response by the majority justices left an open window of ambiguity for future cases. Stephen Robertson, a writer for the First Amendment Encyclopedia in an analysis on the decision, said:
“The Court’s fractured majority fails to say prior restraint may never be imposed; may be imposed only if the threat to national security can be proven to be real, serious, and immediate; or may be imposed if Congress provides sufficiently clear authorization and guidelines. Thus, far from being an unambiguous declaration of support for a free press, the decision leaves open the possibility of government censorship without specifying the conditions under which the First Amendment might permit it.”
The ambiguity of this decision created unwarranted repercussions for the future of the press. How the government went on to use the term “national security” resulted in a sweep of self-protections that began at the turn of the century.
“I think they [the U.S. government] want to blanket national security over almost everything that they do,” McKeen said. “Because as much as journalists should not trust the government, the government does not trust journalists.”
9/11, The Iraq War, and National Security
Undeniably one of the greatest tragedies in American history, the events of September 11, 2001 sent shockwaves to both the country and the entire world. Nearly 3,000 people lost their lives in New York City that day after two planes crashed into the north and south towers of the World Trade Center.
A review of U.S. public opinion in the twenty years since 9/11 showed how shaken citizens across the country strongly came together, how united the public initially was in the U.S.’s wars in Afghanistan and Iraq, and how Americans viewed the threat of terrorism as serious, according to data from the Pew Research Center (Hartig). Just three weeks after the attack, Pew reported that 87% of Americans felt angry as a result of the attacks.
What this meant, right at the aftermath of this tragedy, is American’s were completely behind George Bush’s call for the “war on terrorism” which persisted for much of the 21st century so far. What this also meant was the United States government began to crackdown on any potential threats to “national security” both domestically and abroad. In many instances, the domestic “threats” came from the press themselves.
The great coincidence of the start of the 2000s was how the rise of the Internet, mass distribution of information, and the media all clashed with the historical events of the first decade of the 21st century. 9/11 and the proceeding involvements in the Middle East was one of the first times in history that everyday Americans were getting the live point-of-view of soldiers on the front lines.
“I had this image [on the TV] that I am on the tank during the invasion and I’m watching war as it happens. In a way it’s a fantastic use of technology, but it was also kind of weird,” McKeen said, in speaking on watching the United States invade Iraq.
There were, however, some contradictions to this. The Bush administration notably became more hostile to releasing information to the press in comparison to previous administrations, according to Dinah PoKempner, in an analysis of freedom of expression since 9/11, for the Human Rights Watch (PoKempner).
In her analysis, she noted that the administration moved to reclassify information that had been in the public domain, reverse the presumption toward disclosure under the Freedom of Information Act, and greatly restrict public access to presidential papers, among other things (PoKempner).
PoKempner also described the “unusual determination” the U.S. government had to virtually force investigative reporters to disclose their confidential sources — as Congress failed again, at that time, to pass a federal “shield law.”
Even though the press became more “embedded” into the realities of the war, it led some of them down a path of no return in which they began to uncover some ugly truths of how the government was operating.
The most notorious example of the U.S. government’s determination to reveal confidential sources who’ve shared classified information — colloquially called leakers — is the case of Edward Snowden.
In 2013, The Guardian and The Washington Post were the first publish an amalgamation of reports that used documents leaks by an anonymous source which exposed a government-run program that was monitoring the records of not only terrorists, but everyday citizens (Edward).
Snowden, a contractor for the National Security Agency, revealed he was the source behind the leaks, just three days after the Post and Guardian first published. What came after showed that the attacks on the World Trade Center resulted in the U.S. government to relax its rules around surveillance.
Within the month of the stories being published, the U.S. government charged Snowden with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence (Edward).
Was this justified in the protection of “national security”? Was the government right in going after Snowden the way they did?
“I think [leakers] should go to jail,” Jack Weinstein, a professor of the Practice of International Security at BU, said in a Zoom interview. “I don’t think an individual should have the authority to do that.”
Weinstein, who is also a retired lieutenant general for the United States Air Force, has a hard stance against the media and leakers working together to publish classified information. He does believe however that the role of the free press after 9/11 was crucial.
The Iraq War was a major example of people like Weinstein who worked in the government to actively participate journalists in their operations.
“I embedded the press into all my launch operations,” Weinstein said.
However, journalist historians such as McKeen didn’t see this technique as a net positive for the press and the public.
“My feeling after 9/11 was that the press was co-opted by the government and by the military, in that they set the standard of embedding reporters,” McKeen said. “I think that that’s always the number one priority to control the press. And the press has allowed itself to be controlled a lot.”
A co-opted press, under the veil of protecting national security and unifying the nation may have led to unwarranted consequences on how free the press really is.
Leakers, Hunters, and Reform
Finding ways to reform how the U.S. government in today’s climate can be more transparent in sharing information with the press can manifest in different ways.
Abroad in Europe, only three countries had laws in place against “apologie” or “glorification” of terrorism in 2004. In 2006, that number skyrocketed to 36 countries (PoKempner). These reforms were also quite ambiguous as to how they’d characterize those traits and, in some cases, could get the press in hot water.
And while conservative think-tanks in America such as The Heritage Foundation believe that law enforcement should use all the available tools to hunt leakers down (Doescher), people like Weinstein believe that the issue can be prevented earlier.
Vetting people better who have security clearances, creating a permanent government body that regularly declassifies documents, and creating a system that regulates how government workers handle classified information are ways Weinstein suggests can prevent leakers from sharing information.
Other suggestions Weinstein made revolved around creating certifications to give a journalist credentials. Some would argue though that this is another infringement on the first amendment (Lessenberry).
The question remains: In an era of government crackdowns on leakers, citing “national security,” how free is the press really?
Interview Sources
Jack Weinstein, Retired Lieutenant General of the U.S. Air Force, Professor of the Practice of International Security at Boston University. Interviewed on April 21, 2022.
William McKeen, Chairman of the Department of Journalism at Boston University. Interviewed on April 20, 2022.
Research Sources
Baracskay, Daniel. “Prior Restraint.” The First Amendment Encyclopedia, Middle Tennessee State University, 2009.
Doescher, Tim. “Hunting Down the Leakers.” The Heritage Foundation, The Heritage Foundation, 11 July 2021.
“Edward Snowden Discloses U.S. Government Operations.” History, A&E Television Networks, 26 June 2018.
Hartig, Hannah, and Carroll Doherty. “Two Decades Later, the Enduring Legacy of 9/11.” Pew Research Center - U.S. Politics & Policy, Pew Research Center, 2 Sept. 2021.
Lessenberry, Jack. “Licensing Journalists Is a Bad Idea.” Michigan Radio, University of Michigan, 16 Oct. 2017.
PoKempner, Dinah. “A Shrinking Realm: Freedom of Expression since 9/11.” Human Rights Watch, Human Rights Watch World Report, 2007.
Robertson, Stephen. “New York Times Co. v. United States (1971).” The First Amendment Encyclopedia, Middle Tennessee State University, 2009.
Vile, John R. “Constitutional Convention of 1787.” The First Amendment Encyclopedia, Middle Tennessee State University, 2009.