Today’s story about the Justice Department obtaining two months’ worth of telephone records from the Associated Press, apparently without a warrant and without any sort of prior notice to the people or entity thus searched, gives me a good platform to respond (as promised) to fellow Ordinary Gentleman Tim Kowal’s cogent argument for “original public meaning” originalism as a mode of interpreting the Constitution.
I’m not yet passing judgment about the subpoenas, but I think my analysis frames a discussion that needs to be had as a foundation for eventually doing so. It’s not a discussion that’s really been had before in our nation’s history, which turns out to be kind of important on a lot of levels.
1. The Subpoenas
So here’s what we know about what happened recently. There is an investigation of a leak to the press concerning a thwarted attempt to bomb an aircraft last year — a success of anti-terrorism activity. Leaking information to the press is indeed a crime. Sometimes. In 2000, President Clinton vetoed a law that would have made disclosure of classified information under any circumstances a crime, regardless of harm or motive. So sometimes it isn’t a crime, too. If information is leaked, it’s reasonable for law enforcement to think there might have been a crime committed.
So today it was learned that the Justice Department had obtained about two months’ worth of records of telephone calls coming in or going out of the Associated Press’s offices in Hartford, New York, and Washington by way of subpoenas issued out of the office of Ronald C. Machen Jr., the U.S. attorney for the District of Columbia. After the CEO of the AP sent an outraged letter to Attorney General Holder about this…
The U.S. attorney’s office in Washington responded that federal investigators seek phone records from news outlets only after making “every reasonable effort to obtain information through alternative means.” It did not disclose the subject of the probe.
“We must notify the media organization in advance unless doing so would pose a substantial threat to the integrity of the investigation,” it said. “Because we value the freedom of the press, we are always careful and deliberative in seeking to strike the right balance between the public interest in the free flow of information and the public interest in the fair and effective administration of our criminal laws.”
We know that with a warrant, the government can do some pretty amazing sorts of searches. But the information here is something called a “pen register.” Nob Akimoto points out, correctly, that the case of Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that pen registers are not protected by the Fourth Amendment. You have no reasonable expectation of privacy in the record kept by the phone company of your telephone calls. But it’s not quite so simple as that. In order to use a pen register, the government does need, by statute, to apply for and get a search warrant from a court (although it isn’t called that). The federal prosecutor must provide the Court with sufficient information to demonstrate that “…the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.”
Now, we also know that the Justice Department claims that it has the right to seize this information on its own and without a warrant, because the Attorney General himself signed off on the order requesting it. And the statute allows for such unilateral seizure in an emergency situation, provided an application is made to ratify the seizure within forty-eight hours of the seizure. Now, I’m not going to analyze whether the subpoena violates a shield law. I’m going instead to ask whether freedom of the press is implicated. And along the way, I’m going to dig in to how we get to that result.
So given the Smith v. Maryland case, the warrant requirement is purely statutory and not done to comply with the Fourth Amendment, since the Fourth Amendment does not apply at all to the information in question. The Constitutional problem I see comes from a different section of the Constitution, and this is what brings me back full circle to Tim.
2. The Press Clause
The First Amendment to the United States Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
We have a pretty good idea, after two and a quarter centuries of law on the subject, of the contours of free speech rights, at least in very broad strokes. But free press rights are not nearly so well fleshed-out by accumulated jurisprudence. It’s usually lumped in with speech. But we also know that Congress shall make no law abridging the freedom of the press.
Well, what does that mean? We know that it protects the freedom to publish “every sort of publication which affords a vehicle of information and opinion” without prior restraint by the government except in very narrow cases, like “sailing dates of transports or the number or location of troops,” so the government could not even stop publication of the Pentagon Papers during the Vietnam war. If “publication” sounds like a synonym or at least a cognate for “speech” to you, well, it does to me, too. I’m not “speaking” to you now in this blog post. I’ve “published” it. But you should have no doubt whatsoever that I’m acting within the scope of my freedom of speech.
Freedom of the press does not mean a license to libel nor the ability to broadcast obscenity. It does not immunize professional journalists from questioning by law enforcement; the First Amendment does not protect sources from identification if a journalist is subpoenaed. The case that decided this last point was Branzburg v. Hayes, 408 U.S. 665 (1972), concerning a reporter from the New York Times who had spent substantial time with sources within the Black Panther Party, who refused in response to FBI questioning to divulge the identity or location of where he had gathered his information. A balancing test was created, but no core Constitutional privilege affirmed:
[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
In other words, it’s basically another warrant application. The need for information to get to law enforcement is balanced, case by case, with the need for a reporter to gather information in furtherance of publication — that is to say, publication. This is in theory no different than a Fourth Amendment balancing the right of privacy against the needs of law enforcement. Only there, we have an explicit Constitutional standard against which law enforcement’s showing can be measured: probable cause.
3. Constitutional Concept Blending
And in subsequent cases, we see a case law blending of First and Fourth Amendment concerns, Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, a student newspaper had a large number of photographs of a student protest turned violent, in which police had been injured (some of the students did poorly as well). The Supreme Court affirmed the issuance of a search warrant into the newspaper’s office for photographs and other records, but stringently limited the scope of that warrant to narrowly tailor the search to only those photographs which would show assaults on police officers.
Which gets to another fundamental concept — strict scrutiny. Whenever the government’s actions implicate a “fundamental right,” the courts guide themselves to examine whether the action was “narrowly-tailored” to be the “least restrictive means” available to realize a “compelling governmental interest.” In law school, they teach students that the law almost never survives this analysis, but in fact about 30% of challenged laws or actions are upheld under this standard.
I can be comfortable with this, because I see “rights” as the limits of the power of the government. The government has X amount of power, no more. We express those limits in terms of “negative rights.” So why not borrow from one kind of Constitutional jurisprudence to interpret a right that is less well-fleshed out? Just because a right is articulated here doesn’t mean it has no function there.
But I don’t know that an “original public meaning” scholar can be comfortable with this kind of borrowing. This does not seem to be what the contemporaries of the Framers were thinking about at all. These are obscure, confusing concepts. They likely formed no consensus at all about whether freedom of the press should borrow probable cause concepts from criminal procedure. That they cared about both concepts is not in dispute; that they saw them as intellectual related is questionable at best. What they would have thought of the subpoenas is, I submit, not only unknown but unknowable.
4. What Is The Right?
Was there a “fundamental right” implicated by the subpoenas of the AP’s pen registers? The AP contends (or at least, shortly will contend) the subpoenas create a “chilling effect” on its sources, insofar as they can now more easily be identified and prosecuted. The “fundamental right” is not speech — the AP published the story and there is, as yet, no cause to think that the AP or any person in its employ is suspected of committing a crime. Nor is it an unreasonable search and seizure, since the Fourth Amendment does not protect the pen register and there does seem to be probable cause that someone leaked classified information to an AP reporter.
The right, if one is implicated at all, is something different than the right to publish. It is the right to learn. The right to hear. And more importantly, to do so in a way that will not draw attention or interference from the government, to do so in a way that the government will not subsequently discourage. Is this, then, something that we can fairly read in to the excerpted passage “Congress shall make no law … abridging the freedom … of the press”?
If you’re an “original public meaning” originalist you’re very likely at sea here. It’s going to be a long, hard slog through the historical record to figure out what the public’s understanding of “freedom of the press” was in any manner that illuminates this question. It’s fair to say that just because it’s sometimes difficult to understand what people thought of a word or a phrase, the exercise of trying to learn this is nevertheless still important. If we come up with a result, it will help us understand the concept of a free press.
First of all, you’re unlikely to find anything at all, at least not anything relevant, in the historical record. To the “public” of 1791, it was as murky as it was to us that anyone had a right to gather information. There was nothing like what we call “investigative journalism” today. It just plain didn’t exist yet. The press was a partisan entity. Its job was to spur people to political action. The truth was a tool, but only one of many.
The people of that era were every bit as divided in the public expression of their partisan loyalties as we are today — and every bit as unprincipled about it, too. There were scandal sheets, sure, and sensational stories sold papers and made or broke both political and personal reputations just as they do today. We could look at the Alien and Sedition Acts and the XYZ affair.
You can get publication out of what was going on historically. But learning, listening, gathering knowledge, without governmental interference?
If you’re looking for the “original public meaning” of a free press, you’re going to find little or nothing about whether the right to gather information was a part of it. “Original public meaning” is silent, at best, it is ambiguous, in that there is no clear indicator of consensus other than that people sort of liked the words.
This particular problem was not one that the Framers ever confronted. “Original public meaning” isn’t there to be found.
5. The Unavailing Historical Record
If you comb the historical record to ascertain “original public meaning” and you find little to nothing that illuminates this question, your lens reveals only darkness. And you must ask yourself what that darkness means. If “original public meaning” being silent means that this isn’t part of the right, you may want to have a glance at the Ninth Amendment, too — but that’s also going to be problematic, since the Ninth Amendment doesn’t enumerate anything and its “original public meaning” was as a catchall and a safeguard, a sop thrown to George Mason and the anti-Federalists.
I must, with Gentlemanly respect, accuse Mr. Kowal of exactly that sort of cherry-picking when he addresses the National Day of Prayer issue: he refers to non-operative language in the Northwest Ordinance, the Constitution of Massachusetts, and remarks credited to John Adams* to indicate that the general understanding of the relationship of the government and religion was one to which a strict prohibition on governmental promotion of religion would have seemed alien. Perhaps.
Or perhaps not. I can point to the historical record, too: the Treaty of Tripoli, signed by the same John Adams:
As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.
Or James Madison’s Memorial and Remonstrance Against Religious Assessments:
…in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. … if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. … Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?
Madison is widely credited with having hired a chaplain to minister to Congress, with public money, apparently in the same breath that he introduced the First Amendment. In fact, Madison voted against hiring a chaplain, and considered Congress’ actions in hiring chaplains to be contrary to the Constitution.
Or Thomas Jefferson, who may not have participated directly in the drafting of the original Constitution but was influential in the passage of the Bill of Rights, who said in 1789:
I never submitted the whole system of my opinions to the creed of any party of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent.
This is not the thought of a man who would embrace religion as a positive influence on society. Jefferson also said in 1814, “Christianity neither is, nor ever was a part of the common law.”
States Established religions, it is true, and the last state to Disestablish was Massachusetts, which didn’t Disestablish Congregationalism until 1833. But they didn’t want Congress Establishing a national religion at all. (So does that mean that members of the Federal generation would have been okay with the President Establishing a national religion? The First Amendment only speaks of a limitation on Congress’ power, after all.)
But this sort of cherry-picking is irrelevant. We can spend all day going back and forth with quotes and counter-quotes. Tim rightly dismisses the notion that any one person’s understanding was important — if it’s important at all to ask what people at the time thought particular words meant, then we do need to ascertain a general consensus.
This we cannot do. Not that it wouldn’t be important if we could do it, but it’s not within reach. There was no Gallup poll in 1791. The fact that we can cherry-pick quotes and passages from a variety of legislatures and a variety of prominent opinion leaders that seemingly oppose one another is evidence enough that consensus didn’t exist. The Declaration of Independence was itself not a document generated by consensus of the public as a whole, but rather an expression of a particular strain of political preference. A substantial number of residents of the colonies were Loyalists and actively resisted independence; a substantial number in addition had no strong preference for or against independence.
The lens of “original public meaning” is, as with the religion clauses and the press clause, a crystal ball in a dark room — you’ll see the right to gather information free from governmental interference in the press clause if you want it to be there, or you’ll see no such right in there if you didn’t want to see it there. Only you’ve fooled yourself by reading into the historical soup that you’re looking at something that was somehow objective. You’ll cherry-pick a sparse and ambiguous historical record to reach an answer you want, pride yourself on being true to the Framers’ intent, and accuse those who disagree with you of being bad historians.
That isn’t good enough.
6. The Constitution As Law
My first objection to “original public meaning” is that it is not only difficult, but impossible, to ascertain with objectivity. But my second objection is even if we could somehow do this, how much importance do we assign to the result of our scholarship? If we can ascertain a clear meaning to a particular phrase, great. But if we could do that, we probably will find that it isn’t much at variance with the way we understand the language ourselves in the first place.
What did the words in the Constitution mean to those people? About the only thing about original intent that we can know for sure is that they expressed themselves in words, words intended to be law. It says so right there in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Whatever else it is, the Constitution announces itself as law. And law is made up of words, words written down on a piece of paper. Words that have effect and power in the real world, enforceable ultimately by men with guns. And the law is malleable. The Constitution is malleable. We’ve amended it twenty-seven times and nothing stops us from amending it again except our own inability to form a consensus about how we should do it.
Applying the concept of “original public meaning” to other kinds of words and phrases passed into law is similarly unavailing. In our own day, what are we to make of the “original public meaning” of the Patient Protection and Affordable Care Act? There was no consensus for or against enactment of that law. Does it impose taxes? Fees? Unlawful seizures of property? We look to the text of that law to ascertain its meaning, not some nebulous understanding of what people in Congress or voters thought the law meant. Most of them had never read it in the first place.
Yet the PPACA is law. On that point, there is no reasonable dispute anymore.
If we don’t need to apply an “original public meaning” to the PPACA because we have its very words to tell us what Congress meant when it passed it, why should the Constitution be any different than that?
This does mean, of course, that we have to do some hard work. We have to figure out what words on paper mean, and what effect they should have on the real world. What should those men with guns do? Should they tell the phone company to hand over records to the Department of Justice? Or should they tell Eric Holder that he needs to solve his law enforcement problems some other way?
We first must understand what its mean to have a free press. “Original public meaning” can illuminate, but not resolve, such a discussion. When we have an understanding of what a free press is, we can decide if the subpoenas get in the way of that.
We can’t ask James Madison or John Adams. The ghosts of the Founders aren’t going to tell us, and neither are their writings. It’s not just difficult to figure out what they would have wanted, it’s impossible. And the press is something different today than it was for them. It is, at least to most people, supposed to be somehow neutral in the affairs of partisan dynamics. Its client, its party, is truth. In 1791, telling the truth just wasn’t the press’ primary job.
Congress shall pass no law abridging the freedom of the press. That was true in 1791, 1891, 1991, and it’s true today. Nothing has changed as far as the law goes. We just haven’t yet done the hard thinking necessary to understand what that phrase really means. This case will move us a step closer to that goal. It won’t take us all the way there. We’ll never get all the way there. And that’s okay. But in the meantime, we have a practical problem to solve.
Just like with religion, and privacy, and due process (surely, the Framers would have scoffed at the Miranda warning or the notion of public defenders yet we accept these conceptual innovations in our Constitutional jurisprudence happily) we have to figure out for ourselves what “freedom of the press” means. That we use legal language and not ambiguous history (much less some brooding omnipresence in the sky) to solve our problems does not make us lawless or governed by anyone but ourselves.
Quite the opposite.
* I can find only two references anywhere to the quote Mr. Kowal attributes to Mr. Adams: “if you want the good order that comes from instruction in religion, particularly the Jewish and Christian religion, then you have to pay for it.” Both are the same speech given by Michael Novak in 2006, one at the Heritage Foundation, and the other reprinting that report word for word. I can’t find where Adams actually said this, and if so, when. I’m not saying he didn’t say it nor any reason to question Mr. Novak’s veracity as a scholar (unlike other scholars who don’t mind lying for Jesus). I just can’t find anyone other than Novak who says Adams used this particular combination of words.