Because of his strong leadership against government intimidation of the media, The Constitution Project, a bipartisan legal watchdog group, is honoring Gary Pruitt, the President and CEO of the Associated Press, as one of its 2014 Constitutional Champions. Pruitt will receive the award at TCP's annual gala on April 24 at the offices of Jones Day in Washington, DC.
Late last month, and with little public fanfare, Attorney General Eric Holder adopted new guidelines tightening government access to journalists' records. The new guidelines are designed to shield journalists from subpoenas, court orders and search warrants that "might unreasonably impair ordinary newsgathering activities." Although the new standards still allow plenty of wiggle room that the lawyers at the Department of Justice can squeeze through, particularly when it comes to classified information deemed by the government to be potentially harmful, they shift the balance toward greater freedom of the press and away from unbridled prosecutorial power.
The adoption of the new rules concluded a process that began last May, when the Associated Press revealed that the Department of Justice had secretly obtained records for outgoing calls for the work and personal phone numbers of several individual reporters, for general AP office numbers in New York, Washington and Hartford, Connecticut, and for the main number for the AP in the House of Representatives press gallery. In all, the government seized the records for more than 20 separate telephone lines assigned to the AP and its journalists. Potentially, as many as 100 AP reporters and editors might have used those lines in newsgathering activities. Government officials apparently obtained the records directly from the phone company, without notice to the AP.
"These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP's newsgathering operations, and disclose information about AP's activities and operations that the government has no conceivable right to know," Pruitt wrote in an forceful letter to Holder on May 13, 2013. Before joining the AP in March, 2012, Pruitt was a First Amendment lawyer who headed The McClatchy Company, the third-largest newspaper company in the United States.
Although the Justice Department has given no official explanation why it seized the AP records, Pruitt speculated that the government was investigating the source of an AP story that ran May 7, 2012, about the Central Intelligence Agency's disruption of a Yemen-based terrorist plot to bomb an airliner. According to Pruitt, the AP delayed publication of that story at the request of government officials who said it would jeopardize national security, and only distributed it after two government entities indicated the threat had passed. The administration asked the AP to continue holding the story until the White House could make an official announcement, a request the AP declined.
People across the political spectrum recognize that the government has a legitimate interest in preserving some secrets about the ways that we as a nation protect ourselves from terrorists or others wishing to do us harm. They also understand that a free press is the best way -- and perhaps the only way -- that the public can hold its government accountable. Reaching the proper equilibrium between preventing unauthorized disclosure of classified information on the one hand, and protecting freedom of speech and the public's right to know what its government is doing on the other, is necessarily a delicate balancing act.
However, no reasonable observer could claim that the breadth and scope of the Justice Department seizure of AP records was anything other than a massive prosecutorial over-reach. In an effort to identify a government official who may have inappropriately shared information with a reporter, prosecutors scoured thousands of legitimate conversations between journalists and their sources, effectively turning the news reporters -- without their knowledge, let alone their consent -- into recorders of contacts for the prosecution, and the act of newsgathering into another law enforcement tool. As Pruitt put it in a speech at the National Press Club, it was "it was an overbroad and sloppy fishing expedition into a wide spectrum of AP news journalists -- most of whom had little or nothing to do with the issues in question." Clearly this is not what the Framers intended when adopting the First Amendment.
Equally troubling is the fact that the Justice Department did not give the AP any notice that its records were considered relevant to an ongoing criminal investigation. Ordinarily in such situations, prosecutors notify the news organization in advance, giving it a chance to define the scope of any inquiry through negotiation or, failing that, an opportunity to ask a court to intercede. According to Pruitt, the agency's failure to do so in this instance, in apparent defiance of their own regulations, meant the Justice Department acted as "the judge, jury and executioner in secret."
(As an aside, in a report issued five years ago, The Constitution Project's bipartisan Liberty and Security Committee identified government overclassification of documents and excessive secrecy as the major reason why a "staggering amount of information is improperly withheld from public scrutiny." It offered a number of recommendations to address the situation, many of which remain applicable today.)
In an appearance on Face the Nation, Pruitt suggested that the Obama administration's overly broad seizure of phone records was intimidating government employees who might otherwise act as sources for news stories. "Officials who would normally talk to us, and people we would talk to in the normal course of news gathering, are already saying to us that they're a little reluctant to talk to us; they fear that they will be monitored by the government," he said.
Pruitt's swift and unequivocal response to the government's excesses triggered a firestorm of support for the AP position. For example, more than 50 media organizations and professional associations joined a letter coordinated by the Reporters Committee for Freedom of the Press, which read in part "the scope of this action calls into question the very integrity of Department of Justice policies toward the press and its ability to balance, on its own, its police powers against the First Amendment rights of the news media and the public's interest in reporting on all manner of government conduct." As a result, President Obama directed the Justice Department to substantially revise its policies. The new guidelines announced last month came out of that process.