We must make the First Amendment ‘durable.’ Here’s why | Miraldi – Poughkeepsie Journal
Rob Miraldi| Special to the USA TODAY Network
William O. Douglas was the curmudgeon of the U.S. Supreme Court. Fiercely independent, crusty, irreverent, a product of the New Deal and an active man who did not seem to fit behind a desk wearing a robe. But there he was, a Supreme Court judge for 36 years, the longest serving justice ever who wrote more opinions than any other judge.
Douglas had his critics Gerald Ford tried to impeach him in 1970 because he believed that when the Framers wrote the First Amendment to the Constitution, beginning with the words Congress shall make no law regarding freedom of the press or speech, they meant it. No law means no law.
Douglas, who died in 1980, was fearful most of all about the pervasive reach of snooping government that would chill reporters doing their work and inhibit people from speaking whats on their mind. Governmental intrigue or aggression is an eternal danger, Douglas warned in1974 in the only case the Supreme Court ever decided on the question of whether reporters are shielded from government prying into their sources.
So I wonder what he would say today about, for example, the recent revelation that longtime national security reporter Barbara Starr of CNN, whose phone records were secretly snared by the Trump Administration because she wrote stories with unidentified sources that Trump wanted. The stories she wrote in 2017 were mildly embarrassing but certainly no real threat to national security. It was a frivolous and dangerous pursuit, a fishing expedition.
What happened to Starr happened to at least seven other reporters that we know about. In fact, the Trump Administration sought the sources of nine journalists in its four-year reign. In contrast, Obama went after the same number in eight years, although it is worth pointing out that his administration was aggressive in its pursuits of leakers. And while presidents have sought reporters sources since the Civil War, the pursuit by Trump has taken it to a new level.
CNNs lawyers were gagged; they could not inform Starr nor go to court to argue that governmental prying was not only wrong but arguably illegal.
Self-government cannot succeed, Douglas wrote, unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting subjected to critique, rebuttal, and re-examination.
And that is threatened when journalists are at the whim of Presidents like Trump who believed the press is an enemy of the people.Pulitzer Prize-winning journalist James Risen, who has felt the sting of such probing, writes, For national security reporters today, being good at your job can make it hard to sleep at night.
So here we are again, 47 years after the court decided that reporters should be treated like all other citizens and that they have to turn over sources or go to jail.Unless Congress finally sees fit to pass a federal law which gives the press a privilege or as Douglas called it, a preferred position.
I spoke with Gabe Rottman, director of the Reporters Committee for Freedom of the Presss Technology and Press Freedom Project.His group is the premier advocate for the press in the nation. And he is hopeful that the time might have arrived for a federal press shield law to get through Congress.
In the past, resistance to treating reporters as privileged characters much as we do for clergy, physicians and spouses has brought resistance.In 2013, the law bogged down around how to define who would qualify for the privilege.Who exactly is a reporter in the age of the Internet? Julian Assanges huge dump of raw classified documents and emails in 2010 and 2016 made many not want to let him be called a reporter.
But 49 states in the U.S. have some sort of shield law that find a way to define who qualifies. Rottman says it revolves around finding the best definition of the function being served. It needs to be broad and functional. In other words, if you are pursuing facts to share with any public, you are a journalist.
We need more voices: Big tech, information and American political discourse
Free speech and a free press: Inside the 'golden age of defamation': How the First Amendment is under siege
Sen. Ron Wyden of Oregon is clear that the time is now for a shield law.
The Trump Administration spied on reporters it suspected of no crimes in its hunt to identify their sources and prevent the American people from learning the truth about Trumps lawlessness and corruption, he declared in announcing his shield law.
Rottman is more cautious as to why from major news organizations had to face broad, secret demands for their phone and email records in an effort to identify their confidential sources.
Rottman says Congress needs to ask why.
Without a concrete, public accounting, observers can only speculate about the governments reasons, he told me. There is no public reporting on the reasons that the records were obtained.
Risen is a former reporter for The New York Times whose confidential sources revealed wide surveillance by the government on private citizens after the World Trade Center attacks. And the government sought with a vengeance to get Risens sources.
The real goal of leak investigations, he says, is to have a chilling effect on the press, to stop reporters from investigating the government. Embarrass enough investigative reporters and maybe they will stop embarrassing the government.
But that is not just bad for reporters, it is bad for democracy.
Go back to Douglas.
A reporter is no better than his source of information, Douglas insisted, rightly. The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but because the right to know is crucial to the governing powers of the people.
It comes down to the free flow of information to the public, saysRottman. Sources will not come forward, they wont even talk if they are worried about incidentally being swept up. You dont want the press to become an investigative arm of the government.
Douglas, again, hit the nail on the head years ago: Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.
The Biden Administration has recognized this, recently issuing clear and careful guidelines as to when a reporters source should be pursued by the federal government.Its a far cry from Trump.But the point, still, is the press cannot be at the whim of different administrations approaches.The First Amendment is not whimsical; it is the heart of democracy.
The rules need to be made durable, Rottman says.
Give the people a federal law that protects the reporters who gather their news from, as Sen. Widen says, the thuggish and Orwellian abuses of administrations like Trumps.
Rob Miraldis writings on the First Amendment have won numerous state and national awards. He teaches journalism at the State University of New York. T
Twitter: @miral98
Email: miral98@aol.com.
View original post here:
We must make the First Amendment 'durable.' Here's why | Miraldi - Poughkeepsie Journal
- Warwick tries to bar critic from disclosing information obtained in First Amendment suit - The Boston Globe - July 9th, 2026 [July 9th, 2026]
- South Milwaukee Orders Residents to Take Down Whimsical Skeleton Display, a Violation of Their First Amendment Rights - The Institute for Justice - July 9th, 2026 [July 9th, 2026]
- ABC Fights Back Against FCC Regulators in Dispute Over The View and Equal Time Rules - First Amendment Watch - July 9th, 2026 [July 9th, 2026]
- How does the First Amendment apply to AI regulation in hiring and health care? - FIRE | Foundation for Individual Rights and Expression - July 9th, 2026 [July 9th, 2026]
- Judge Orders E. Jean Carroll Be Paid $5.8M in Trump Sex Abuse and Defamation Case; Trump Appeals - First Amendment Watch - July 9th, 2026 [July 9th, 2026]
- First Amendment wins at Supreme Court to the horror of liberal justices - Washington Examiner - July 9th, 2026 [July 9th, 2026]
- Florida Tried to Stop Woke. The First Amendment Stopped Florida. - Cloaking Inequity - July 9th, 2026 [July 9th, 2026]
- ABC fires back at FCC investigation of 'The View' in new comments calling it a First Amendment violation - Fox News - July 9th, 2026 [July 9th, 2026]
- The Equal Rights Amendment and the First Amendment: A Roadmap for a Feminist Future - Ms. Magazine - July 1st, 2026 [July 1st, 2026]
- Expressive Governance Is a First Amendment Threat Hiding in Plain Sight - Tech Policy Press - July 1st, 2026 [July 1st, 2026]
- Supreme Court Strikes Down Limits on Party Spending in Federal Elections, Backing Republican Appeal - First Amendment Watch - July 1st, 2026 [July 1st, 2026]
- Another New York Resident Says He Was Warned by Officers After Criticizing ICE - First Amendment Watch - July 1st, 2026 [July 1st, 2026]
- Gateway Church wins tithing lawsuit dismissal as federal judge cites First Amendment - The Roys Report - June 28th, 2026 [June 28th, 2026]
- ACLU raises First Amendment concerns over Hartland library boards decision to reshelve LGBTQ+ books - News From The States - June 28th, 2026 [June 28th, 2026]
- Weakening Government Coercion by Strengthening Government Regulation - | Knight First Amendment Institute - June 28th, 2026 [June 28th, 2026]
- Former Executive Sues Meta Over Attempts To Silence Her Memoir, Careless People - First Amendment Watch - June 28th, 2026 [June 28th, 2026]
- ACLU raises First Amendment concerns over Hartland library boards decision to reshelve LGBTQ+ books - Iosco County News Herald - June 28th, 2026 [June 28th, 2026]
- New York City Council Candidate Is Accused of Forgery Over AI-Generated Posts - First Amendment Watch - June 28th, 2026 [June 28th, 2026]
- Why the Prairieland case is more about disproportionate justice than it is the First Amendment - Media Nation - June 28th, 2026 [June 28th, 2026]
- Reflecting on Americas 250th anniversary: The First Amendment - Princeton University Press - June 24th, 2026 [June 24th, 2026]
- How does the First Amendment apply to AI? - FIRE | Foundation for Individual Rights and Expression - June 24th, 2026 [June 24th, 2026]
- 8 Convicted in Texas Immigration Center Shooting and Protest Are Sentenced to Decades in Prison - First Amendment Watch - June 24th, 2026 [June 24th, 2026]
- Justice Department Withdraws Subpoenas That Sought Reporters Grand Jury Testimony, Sources Say - First Amendment Watch - June 24th, 2026 [June 24th, 2026]
- Fence surrounding Eugene Federal Building to be removed within 48 hours, judge rules violation of First Amendment rights - Daily Emerald - June 24th, 2026 [June 24th, 2026]
- Addressing Power Concentration: What to Do About the Office of Management and Budget? - | Knight First Amendment Institute - June 24th, 2026 [June 24th, 2026]
- Pro-life non-profit to stand trial in first of its kind First Amendment lawsuit - Pregnancy Help News - June 24th, 2026 [June 24th, 2026]
- 'Relentless, UN-AMERICAN': Trump escalates attacks on the First Amendment to STARTLING new level - Yahoo - June 24th, 2026 [June 24th, 2026]
- Judge orders release of Palestinian rights advocate, citing likely First Amendment violation - Muslim Network TV - June 24th, 2026 [June 24th, 2026]
- Colberts the Beginning, The First Amendment Battle Continues | Opinion - Newsweek - June 22nd, 2026 [June 22nd, 2026]
- IAFF-backed First Amendment lawsuits advance toward trial - IAFF - June 19th, 2026 [June 19th, 2026]
- Revisiting the First Amendment, which created the architecture of state control in India - The Indian Express - June 19th, 2026 [June 19th, 2026]
- CCIA Files Brief Arguing that Texas App Store Law Likely Violates First Amendment - CCIA - June 19th, 2026 [June 19th, 2026]
- Knight Institute, Sen. Welch, and Mohsen Mahdawi Warn Against Weaponization of Immigration Law - | Knight First Amendment Institute - June 19th, 2026 [June 19th, 2026]
- The First Amendment can be expressed in countless ways, such as painting a crosswalk. - Monterey County Weekly - June 19th, 2026 [June 19th, 2026]
- American opinion: Protecting the First Amendment - Grand Forks Herald - June 19th, 2026 [June 19th, 2026]
- UNs Albanese faces uphill battle with First Amendment case seeking to end sanctions against her - Washington Examiner - June 19th, 2026 [June 19th, 2026]
- Bill Introduced in Congress To Codify the First Amendment Right To Film the Feds and Sue for Violations - Yahoo - June 12th, 2026 [June 12th, 2026]
- Of Slop and Swarms: The First Amendment's Next Test - | Knight First Amendment Institute - June 12th, 2026 [June 12th, 2026]
- Will the First Amendment Affect the Midterms? Government Pressure to Control Speech and AI Tools Worries Americans - American Enterprise Institute -... - June 12th, 2026 [June 12th, 2026]
- Fort Wayne Death Doula Secures Final Victory in First Amendment Lawsuit Challenging States Restrictions on Discussing End-of-Life Care - The Institute... - June 12th, 2026 [June 12th, 2026]
- NJ reproductive health bill raises First Amendment concerns - The Jersey Vindicator - June 12th, 2026 [June 12th, 2026]
- Roll Call. Clicks and confrontation are the real goal of First Amendment auditors - Shaw Local - June 12th, 2026 [June 12th, 2026]
- Southern Baptists Want to Shrink First Amendment Protections - Word&Way - June 12th, 2026 [June 12th, 2026]
- Armstrong responds to backlash over his endorsements I didnt give up my first amendment rights when I became governor - WDAY Radio - June 12th, 2026 [June 12th, 2026]
- On Mormons, The Pentagon, And The First Amendment - Patheos - June 12th, 2026 [June 12th, 2026]
- Philly Cops Admit That Theyre Tracking First Amendment Activity Critical of AI - The Intercept - June 3rd, 2026 [June 3rd, 2026]
- Free Speech Unmuted: The First Amendment and Privacy Rights - Reason Magazine - June 3rd, 2026 [June 3rd, 2026]
- Join the Conversation: The First Amendment and the American Flag - WSHU - June 3rd, 2026 [June 3rd, 2026]
- What Is the Equal Opportunities Rule? FCC Regulation Explained as ABC Claims First Amendment Violation - Freedom Forum - June 3rd, 2026 [June 3rd, 2026]
- VICTORY! Tennessee man jailed 37 days for Trump meme wins $835,000 settlement after First Amendment lawsuit - FIRE | Foundation for Individual Rights... - May 27th, 2026 [May 27th, 2026]
- 'If you can frighten people, you can control them': Journalist Alex Berenson warns about fear-based tactics after securing $150K First Amendment... - May 27th, 2026 [May 27th, 2026]
- The First Amendment exists to protect speech we dont want to hear - CT Mirror - May 27th, 2026 [May 27th, 2026]
- ACLU of Indiana reaches settlement in First Amendment lawsuit against Ball State University - WTHI-TV - May 27th, 2026 [May 27th, 2026]
- Justice Department Appeals Federal Judges Ruling That First Amendment Protections Apply to Sanctioned UN Special Rapporteur - Foundation for Defense... - May 27th, 2026 [May 27th, 2026]
- Q&A: Anna Gomez Is the Sole Democrat on the FCC. She Has a Warning for Big Media Companies - First Amendment Watch - May 27th, 2026 [May 27th, 2026]
- How does the First Amendment apply to protesters at church? Onondaga County lawmakers consider question raised by new bill - AOL.com - May 27th, 2026 [May 27th, 2026]
- A free press is for all of us. Why I cover the First Amendment - The Tennessean - May 17th, 2026 [May 17th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - LancasterOnline - May 17th, 2026 [May 17th, 2026]
- Letter to the Editor: An assault on the First Amendment - Brattleboro Reformer - May 16th, 2026 [May 16th, 2026]
- Re-Aligning Incentives in the Democratic Public Sphere - | Knight First Amendment Institute - May 13th, 2026 [May 13th, 2026]
- In Legal Dispute Over The View, ABC Argues Trump Administration Is Trying To Chill Free Speech - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Appeals Court Spares Trump From Paying $83 Million Defamation Award to E. Jean Carroll For Now - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Online Speech and Jawboning Hypocrisy: Does an Inglorious First Amendment Legacy Await Bondi and Noem? - American Enterprise Institute - AEI - May 13th, 2026 [May 13th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - The Daily Item - May 13th, 2026 [May 13th, 2026]
- ABC accuses FCC of violating its First Amendment rights over its scrutiny of "The View" - CBS News - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Government of Violating First Amendment - The New York Times - May 9th, 2026 [May 9th, 2026]
- Jane Fonda, Patti Smith, Rufus Wainwright to Gather in Celebration of the First Amendment in NYC - Rolling Stone - May 9th, 2026 [May 9th, 2026]
- FCC's warnings on political interviews 'chill' First Amendment, ABC says - Politico - May 9th, 2026 [May 9th, 2026]
- ABC Says FCCs Equal Time Crackdown On The View Chills Its First Amendment Rights - Deadline - May 9th, 2026 [May 9th, 2026]
- ABC accused the U.S. government of violating the First Amendment in a dispute with the FCC over The View. The networks argument is the most aggressive... - May 9th, 2026 [May 9th, 2026]
- ABC accuses government of violating First Amendment - Editor and Publisher - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Trump Administration of Violating First Amendment with FCC's Pointed Attacks on The View - People.com - May 9th, 2026 [May 9th, 2026]
- Sen. Kelly First Amendment Case: Government Cannot Be Arbiter of Its Own Speech Restrictions - Cato Institute - May 9th, 2026 [May 9th, 2026]
- DCYF warning to union leader raises First Amendment concerns, ACLU says - Rhode Island Current - May 9th, 2026 [May 9th, 2026]
- ABC accuses the FCC of violating its first amendment rights - WQAD - May 9th, 2026 [May 9th, 2026]
- Local news and the First Amendment: Whats at stake - Roswell Daily Record - May 9th, 2026 [May 9th, 2026]
- Mark Kelly lawsuit: impact on First Amendment rights of retired veterans - KTAR News 92.3 FM - May 9th, 2026 [May 9th, 2026]
- ABC and Disney accuse Trump admin of violating First Amendment rights - The Verge - May 9th, 2026 [May 9th, 2026]
- ABC accuses FCC of violating the First Amendment in their attacks on 'The View': An overreach that "threatens to upend decades of settled... - May 9th, 2026 [May 9th, 2026]
- ABC alleges the FCC violated its First Amendment rights over 'The View' criticism - KBAK - May 9th, 2026 [May 9th, 2026]