Column: Inside the First Amendment, Gene Policinski

For me, as an advocate for a free press, watching the ongoing phone-hacking flap in Great Britain involving News Corp. and media mogul Rupert Murdoch is part fascination, part revulsion and, at least for the moment, just a touch of First Amendment concern.

Members of Parliament have questioned Murdoch, his son James and others about alleged misconduct of the corporation’s newspaper employees. The FBI has opened an investigation into claims of phone hacking here, possibly involving victims of the 9/11 terror attacks, and whether U.S. corporate laws were broken if it’s shown Murdoch employees bribed public officials overseas.

Accounts of “correspondents” who indulged in drug-and-alcohol binges with celebrities, charges that staffers erased messages in a murder victim’s voicemail, resignations at famed Scotland Yard — it’s a series of stories that tabloid editors once could only dream of.

The First Amendment provides no legal protection to those who break the law. Still, anytime the government opens an investigation into a news operation, it merits special attention, whether you are a fan of Murdoch’s news outlets or not.

The First Amendment’s protection of a free press shields any one of us, from lone blogger to prolific author to multi-media mogul, from government reprisal rooted in political opposition or personal vendetta.

The challenge for Justice Department officials is to keep their focus on possible criminal activity. The challenge for all of us is to recognize the difference between real journalism — that can at times be tough and intrusive — and reckless behavior by some journalists that crosses both ethical and legal boundaries.

Reporters must ask tough questions that may seem impolite or rude. Journalists must confront people in situations about facts that embarrass or anger. And news outlets should investigate and report on topics that expose individuals or corporations to criticism, scorn and criminal charges. It goes with the job: The pursuit of the truth and serving as a “watchdog on government.”

Of course, those high-minded duties are not well-served by the tabloid stuff of celebrity fluff. Some would argue that Fox News’ constant conservative take makes a mockery of its “fair and balanced” motto. And admittedly, Murdoch’s potent and successful media formula of conservatism, attack tactics and outrageousness shocks some and infuriates others.

But Murdoch properties are not alone in providing fodder for journalism critics. The First Amendment Center’s newly released State of the First Amendment 2011 survey shows that two-thirds of Americans disagree with the idea that “the news media try to report the news without bias,” even as 54 percent do see a need for the news media to act as a watchdog. Earlier surveys by the First Amendment Center and others show that many Americans — while generally supportive of the idea of a free press — have negative feelings about today’s news media.

In this volatile atmosphere, the nagging worry is that the scope and visibility of Murdoch’s woes could lead to some reduction in legal protections for a free press.

Already, a recent commentary in the Los Angeles Times was headlined, “Tabloids Don’t Deserve the 1st Amendment.” Much of the column, written by a former reporter for the Globe tabloid, condemns illegal tactics the writer says are used abroad and here. But the column also includes the chilling exhortation that in the United States, “the judicial system is too quick to bow before the 1st Amendment.”

A July 19 story in The New York Times noted that the News Corp. scandal is renewing calls for examination — and possible increased government regulation — of media consolidation, long the target of liberal and conservative critics of mega-media corporations.

Worthy subjects for discussion, perhaps. But so far, there’s nothing in the Murdoch Meltdown that should justify hacking into the 45 words of the First Amendment.

Gene Policinski is the senior vice president and executive director of the First Amendment Center. Visit www.firstamendmentcenter.com.