FBI Director Comey Doesn’t Understand the 1st Amendment

© Josh Sager – May 2017

This week, FBI director James Comey testified in front of the Senate Judiciary Committee on a variety of issues related to the 2016 election. There were several interesting revelations from his testimony, one of which is that he apparently doesn’t understand what differentiates state-controlled media from a free media. The potential ramifications from this are extremely worrying and don’t bode well for the protection of the free press.

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During an exchange with Ben Sasse (R-Nebraska) about the status of Wikileaks as a journalistic outlet, Director Comey said the following:

“In that, there’s at least a portion and people can argue that maybe this conduct WikiLeaks has engaged in, in the past that’s closer to regular newsgathering. But in my view, a huge portion of WikiLeaks’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And — and — and people sometimes get cynical about journalists.

American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or — or innocent civilians anywhere in the world.

And then work with us to try and accomplish their important First Amendment goals while safeguarding those interests. This activity I’m talking about, WikiLeaks, involves no such considerations whatsoever. It’s what I said to intelligence porn, just push it out in order to damage.”

The first and foremost problem with this statement is that Comey appears to think that a “legitimate newsgathering” outlet is only legitimate if they call the FBI to get approval before they publish classified information. This is antithetical to the purpose of the 1st Amendment, which is so important because it protects the media outlets which publish the stories that the government doesn’t want published. Delegitimizing any outlet that refuses to ask permission before exposing war crimes (e.g. the Collateral Murder tapes), torture (e.g. the Iraq War Files), illegal domestic spying (e.g. the NSA leaks), and corporate corruption (e.g. the TPP files) absolutely destroys the 1st Amendment because it undermines its central purpose.

What separates the American media from the Chinese or Turkish media is that our press outlets don’t need approval from the government before publishing things that the powerful might not like. Comey’s view of what constitutes a “legitimate” media outlet (i.e. one that is protected) would be at home in one of these nations with a state press, but it is completely incompatible with ours. Under his view of the 1st Amendment, Jeff Sessions could declare an anti-Trump media outlet illegitimate and try to prosecute them, just as Eric Holder could have gone after right wing anti-Obama outlets that don’t pre-clear their “classified” stories.

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The classification process is opaque and lacks any accountability. In effect, a classified label can be stuck onto any embarrassing or criminal activity by any number of government entities in order to hide it from the public. The founding fathers foresaw this danger, so they built press protections into the skeleton of our government, ensuring that press outlets cannot be persecuted for publishing stories on these issues.

I’m sure that Richard Nixon would have been happy to declare Daniel Ellsberg’s Vietnam War leaks and the ensuing Washington Post coverage “intelligence porn” that is released solely to damage the USA and not to provide accountability, but even he didn’t dare make this argument. Sadly, Comey is demonstrating just how far the media has fallen in that they not only let Comey get away with saying this without being excoriated, but apparently have participated in this pre-clearance practice.

If Comey’s quote is to be believed, American media outlets have been working with the FBI and American intelligence agencies to censor parts of their stories to protect the government. In some cases, this may be valid (e.g. if a media outlet got the names of undercover agents infiltrating terrorist cells) but in most others it runs the risk of media outlets trading access and goodwill, for concealing embarrassing information from the American people. By agreeing to run stories by intelligence community insiders so that they can be censored, these outlets gain access to “anonymous sources” who leak the classified stories that the government actually wants exposed (e.g. ones that make them look good).

This collusion illustrates just how important uncensored media outlets like Wikileaks are, as they are the ones who will expose the inconvenient truths that those in power will never approve for publishing. Wikileaks is an interesting organization in that it has attacked all sides and never been proven wrong—it has gone after Bush’s torture program, Obama’s spying program, the Saudi government’s terrorist connections, the Syrian regime’s corruption and collusion with Russia, multi-national corporatism and a host of other targets. Because of this, Wikileaks has made many powerful enemies and retains few allies, thus is a great bell weather for press protections.

Wikileaks is the canary in the press coalmine, and attacks against it preclude attacks against other, less contrarian, press outlets. If Comey’s views are taken to their logical conclusion, other outlets that refuse to cuddle up to intelligence and law enforcement agencies will be targeted as well, declared illegitimate, and threatened if they dare expose uncomfortable truths.

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