Weighing Freedom Of The Press Against Public Safety

The Justice Department has been scrutinized this week for secretly obtaining phone records of Associated Press reporters and editors while investigating the disclosure of a CIA operation to thwart a terrorist attack. Steve Inskeep talks to Floyd Abrams, a leading First Amendment lawyer, about how the Constitution and the law treat press freedom.

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STEVE INSKEEP, HOST:

Now the president does say he would favor new legislation protecting the press. Those advocating a national press shield law include Floyd Abrams, he's a noted First Amendment lawyer, and we reached him after the AP said the seizure of its phone records was unprecedented.

Is it really unprecedented?

FLOYD ABRAMS: Well, I would say it's certainly unprecedented in its breadth - the amount of phones, the amount of sources who could be picked up as a result of the seizure of all these telephone records.

INSKEEP: We're talking about 20 lines that may have been used by around 100 different reporters over a period of a couple of months.

ABRAMS: Of two months.

INSKEEP: ...of a couple of months, yeah. So, you're saying that there may well have been cases like this in the past, but they would more likely focus on an individual or a (unintelligible)...

ABRAMS: Yeah, I was involved in one such case just a few years ago for the New York Times and for Judith Miller. Not in the great Judith Miller case that you think of, but a case in which telephone records were involved - of a particular reporter talking to various people in a very short period of time. And I do think that that has potential relevance actually to this case, because we did establish there, as a legal matter, that after the government tells you that they want telephone records that the journalists can go right to court and seek a declaration that they can't get it.

INSKEEP: So, you've established that if you find out that the government is going to seek some information, you have the right to go to court and try to stop it, if the law permits you to stop it - you may or may not succeed. But in this case with the Associated Press, the AP says nobody told us. They just took the records.

ABRAMS: Exactly. Exactly. They went right to the telephone company.

INSKEEP: And is that legal?

ABRAMS: Well, that's sort of a closer question. Under the internal guidelines of the Department of Justice, they're obliged to confer, obliged to tell that they wanted, unless doing so would interfere with the - quote - "integrity" - unquote - of the investigation. Now, I can't imagine how it would've interfered with the integrity of the investigation even if this became public. I mean, it's not that no one knew that the Department of Justice was doing an investigation about this subject. So, I mean, if their concern is that the leaker would find out, the leaker would have known for some time that there was an investigation.

INSKEEP: OK. So, you mentioned internal guidelines of the Justice Department. We should define that. That means there's not a law passed by...

ABRAMS: That's correct.

INSKEEP: ...Congress but the Justice Department recognizes there are concerns here and they've set their own internal rules.

ABRAMS: Exactly. There is no federal shield law. In fact, as you saw, the president endorsed Senator Schumer's proposal for a federal shield law. But at this moment, there is no federal shield law. So, to the extent reporters have protection, legally, it comes from the first amendment, not from anything Congress has passed. And, you know, the law has not been great from the point of view of journalists.

INSKEEP: You're a well-connected guy. You must know people in this administration, or close to this administration. Have you had an opportunity just in talking with people to say what are you thinking, what are you doing here?

ABRAMS: Sure. And their answer is nothing much new. These are dangerous leaks. We have an obligation to protect national security and we do what we have to do. And in this case, I'm willing to accept the proposition that this was a potentially serious leak. The question is why can't you address it in a way that gives the press a chance to get a ruling where the magnitude of the leak and the magnitude of the intrusion into the Associated Press are considered by some independent decision maker - a judge. And that's what they avoided, completely, by going right to the telephone company.

INSKEEP: Floyd Abrams is a long-time first amendment lawyer and also author of an upcoming book called "Friend of the Court." Mr. Abrams, thanks very much.

ABRAMS: Thank you.

(SOUNDBITE OF MUSIC)

INSKEEP: And by way of full disclosure, we should mention NPR has signed onto a letter from many news organizations protesting prosecutors' seizure of the Associated Press phone records.

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