The First Amendment Under Siege | | 5.23.13

It has been a bad few weeks for the First Amendment.

The sinister commonality to the Internal Revenue Service and AP scandals and the James Rosen affair is that each appears to have been (strike “appears “: each was) an attempt to suppress a core American right.

Freedom of the press was clearly the target in the Rosen Affair. The Justice Department, according to Ryan Lizza at, “not only subpoenaed Rosen’s private e-mails but also said that Rosen was ‘an aider and abettor and/or co-conspirator’ in the alleged crime.” Lizza adds that, “[I]t is unprecedented for the government, in an official court document, to accuse a reporter of breaking the law for conducting the routine business of reporting on government secrets.” Writes the Washington Post’s Dana Milbank, “The Rosen affair… uses technology to silence critics in a way Richard Nixon could only have dreamed of.”

With its broad sweep, the government’s secret seizure of Associated Press emails is at least as bad for press freedom. As the New York Daily News’ S.E. Cupp explains:

The chilling effect so often described by journalists is that reporters can no longer offer sources the assurance that their identities will be protected. When that happens, sources clam up and dry up. That silence, especially in matters of war, diplomacy and peace, makes it that much harder for the press to expose government injustices to the public. This calls into question our very understanding of what a free press is.

The IRS’s targeting of conservative groups and individuals was an equally direct attack on freedom of speech. This is so obvious and so well documented that it hardly needs to be explained. Essentially the administration sought to silence critics.

I say “the administration” for increasingly it appears clear that the IRS was a tool of the White House. What else can you conclude from former IRS commissioner Douglas Shulman’s 118 visits to the White House in 2010 and 2011?  Last night I was with a former senior aide to a president. With a shake of the head, I was told that even the most senior cabinet officers don’t visit the White House 118 times in the course of an entire administration. There is no way, this top-level Washington veteran maintained, that they were talking about the implementation of Obamacare all that time.

The former official might have added that, if Obamacare was brought up, as some have suggested it was, what is publicly known strongly suggests that it was in the context of silencing the critics of Obamacare. The Tea Party groups and others the IRS targeted for intrusive scrutiny all seem to have had opposition to Obamacare in common, even more, perhaps, than opposition to the president.

But press and speech are just the latest of the First Amendment freedoms the administration has tread upon.

With Obamacare, of course, they have walked all over religious freedom. The attacks on lobbyists (not the most sympathetic poster children for anything, I know) and on the Citizens United decision go after the right to petition the government for the redress of grievances. Only the right of peaceable assembly remains undisturbed, although attempts to monitor and (by the Federal Communications Commission) control the Internet – the new forum for assembly – work to that end.

In debates over the Constitution, the argument against including a Bill of Rights – which the English had – was that with limited government and separation of powers, no enumeration of rights was needed. The very structure of the constitutional system would protect our rights. Ultimately, to achieve broad consensus, a Bill of Rights was introduced and ratified during the first three years of the new system’s operation.

Good thing, too. Over the past eight decades we have set aside one limit on government power after another and compromised separation of powers to the point that in some sectors we have what looks very much like government by decree. As The Daily News’ Cupp reports of the Justice Department taking AP emails without a court order, “[T]he administration is unapologetic – claiming the records were seized only as a last resort …” But how is this excuse any different than the president’s when he says if Congress does not act, we will?

The 1776 Virginia Declaration of Rights – the immediate predecessor to the Bill of Rights – correctly proclaimed, “The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments.” The same can be said of all our First Amendment rights. But when one line is crossed, the next becomes easier to cross, as does the next, and the next one after that. How do we uncross those crossed lines? This is the greatest question of our time.

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