Last week, Kenneth Starr compelled Sidney Blumenthal, the former Washington Post journalist who now assists the White House in its press relations, to testify before a federal grand jury about press criticism of Starr. Starr ordered Blumenthal to divulge all his communications with the press and with other White House staffers concerning the independent counsel.
In compelling Blumenthal to testify before the federal grand jury, Starr expresses an opinion that every American should consider, the idea that press criticism of a federal official's conduct may constitute a federal crime (obstruction of justice) and that those who instigate or assist such criticism--whether they be reporters, publishers or, as in the case of Blumenthal, sources--may be called to answer for that crime. It's an idea Americans rejected long ago.
At the end of the 18th century, during a period its victims called a "reign of terror" (Thomas Jefferson called it a "reign of witches"), federal officials made it a crime to "cause or procure to be written, printed, uttered or published any false, scandalous, and malicious writings against the government of the United States . . ." Using the Sedition Act of 1798, federal prosecutors and federal judges jailed journalists, private citizens and even a congressman merely for criticizing federal officials. They imprisoned a Connecticut journalist, for example, on the basis of editorials that criticized the Army and, according to federal prosecutors, obstructed recruitment.
At the time of the Sedition Act, the federal judiciary would not determine the constitutionality of federal acts. The only court of appeal was the court of public opinion. So a week after the Sedition Act of 1798 became law, a grandson of Benjamin Franklin warned in his newspaper, the Philadelphia Aurora, "There was a time, citizens, when . . . we flattered ourselves that the liberty of the press was a right too dear . . . to be violated with impunity. We will not say that time is past, but we will say that, under pretexts of order and submission to the laws, we have seen a system maturing, openly hostile to the spirit of freedom. For what? To screen from scrutiny the conduct of your own government."
That warning has meaning for America once again.
Starr is the first public official to attempt to criminalize press criticism without using national security as a rationale. Worse, he has no Sedition Act to define the criticism he will punish. Starr says he will decide himself which of his critics he will prosecute and which criticism of him is a crime.
The 1st Amendment was intended to allow the American press and the American people, including William Jefferson Clinton and his advisors, an unbridled freedom to criticize the conduct of any federal official, particularly when that federal official is, as in Starr's case, elected by no one, answerable to no one, unrestrained by any budget and secret in his proceedings.
In the presidential election of 1800, Americans rejected the Sedition Act of 1798 and the precepts that Starr now avows, elevating to the presidency a man who refused to prosecute critics of federal officials. On the day of Thomas Jefferson's inauguration, the Philadelphia Aurora editorialized: "The history of the monarchical forms of government have taught us . . . never to trust great power to any man or body of men; never to entrust it long; to preserve to the people the right of recalling at short periods every person placed by them in a political situation; and to preserve inviolate the freedom of the press."
Criticism of Starr may sometimes prove unfair. It may even make his task more difficult. But if the 1st Amendment's freedoms of speech and of the press are to mean anything, they must mean that his remedy is to answer his critics, not to punish them.