The Press Is Not the Government : Why subpoenas intended to help the rioting probe must be resisted

The 1st Amendment to the U.S. Constitution addresses three basic rights. One is the right to worship without guidance or interference from government. Another is to assemble peaceably to argue that something government is doing is wrong. The third forbids Congress to restrict in any way “the freedom of speech, or of the press.”

In no case are these guarantees abstract. They put the practice of religion, the right of people to speak out and the right to print (or in these times to broadcast) at arm’s length from government.

This basic principle of independence is what newspapers and broadcasters will be exercising when they formally resist subpoenas for unpublished or unbroadcast photographs and videotapes of the Los Angeles riots.

Such subpoenas on behalf of law enforcement amount to one more in a long string of efforts to blur the distinction between detective work and news reporting--between an arm of government and an arm of a free press. Thomas Jefferson understood this. “No government ought to be without (its judges); and, where the press is free, no one ever will,” he wrote. But the press cannot both judge government and be its accomplice.

The Constitution does not say Congress shall only rarely pass laws “abridging the freedom of speech” or that it should never pass laws that abridge free speech more than slightly. The language is absolute--”no law” shall be made that abridges freedom of the press.

Courts have sometimes set themselves apart from Congress by arguing that shouting “Fire!” in a crowded theater goes beyond free speech, as would printing sailing times of ships in wartime. But, in general, the courts have agreed with Jefferson that “where the press is free and every man able to read, all is safe.”

Resisting subpoenas intended to help identify rioters who broke the law may appear to be a case of broadcasters and publications trying to set themselves above the law. In fact, it is no more or less than part of a continuing effort by a free press to hold the place within the law that was assigned to it more than 200 years ago by the Constitution.