Leaks are crucial part of Americans’ freedom

By Davis Merritt

One person’s leaker is another person’s whistle-blower is another person’s publicist is another person’s defender. One person’s traitor is another person’s patriot.

And they are all, at one time or another, what journalists consider confidential news sources. Because that’s the case, Americans’ freedoms are preserved at a level higher than any other peoples’ in the world.

“To sum up what distinguishes the United States in a nutshell: It’s the First Amendment,” Steven Aftergood of the Federation of American Scientists said last week. “The concept of a free press has been integral to the American idea since its inception….The press here even has the right to be irresponsible, which it sometimes is.”

In fact, the First Amendment itself was in part the work of two men who may have been America’s first important leaker and leakee: Benjamin Franklin and John Adams.

In 1772, Franklin, the British government’s postmaster general in the colonies, received anonymously some letters written by the governor of Massachusetts asking Britain to send more troops to control revolutionaries in Boston.

Franklin circulated them to his fellow rebels under a pledge of confidentiality, but John Adams, a regular contributor to The Boston Gazette, thought the people should know, so he published them.

The governor had to flee, the cause of independence was strengthened, and the leaker, Franklin, lost his job. Perversely, the leakee, Adams, once he became president, consented to the short-lived Sedition Act and his administration prosecuted more than 20 newspaper editors for criticizing government, imprisoning several.

So from the very beginning there has been complex tension between government secrecy and public openness. If that dynamic becomes unbalanced, our freedom is threatened. And that possibility may be about to escalate. Last week, when President Donald Trump called government leaks “a grave threat to our national security” and ordered his Justice Department to crack down on “the culprits” behind them, journalists went on high legal alert.

That’s because the easiest way to identify leakers is by leaning on the leakees to reveal their confidential sources. And should reporters submit to that, government secrecy, whether justified or not, would be reinforced.

Despite years of litigation and so-called “shield laws” in many states, it remains unsettled whether the First Amendment allows reporters to withhold information from criminal investigators in all, or even any, situations.

Trump, known as a relentless litigator willing to wage wars of fiscal attrition in court, is also famous for his animosity toward news organizations and journalists who displease him. Unlike conventional elected officials, he probably would not shrink from seeing uncooperative reporters sent off to jail indefinitely and news organizations bled dry by legal fees.

The art of the leak is a well-established and broadly employed government convention for many reasons (reread the first paragraph above and recall Franklin and Adams). But Trump’s fraught administration is not trickling leaks; there’s a daily torrent.

Trump has shown little knowledge of and respect for constitutional norms and American freedoms as they are broadly understood, so it would not be out of character for him to pursue an all-out war on leaks that, not by accident, diminishes the First Amendment’s protection of Americans’ right to know what their government is doing.

The core issue is not what journalists and news organizations want and need to do; it’s what American citizens want and need to know.

Davis Merritt, Wichita journalist and author, can be reached at dmerritt9@cox.net.


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