Column: Inside the First Amendment, by Gene Policinski

’Tis the season to be jolly and of good will, right?

Responding to holiday cheer with a well-voiced “Bah” or “Humbug?”

Well, it’s our right under the First Amendment to speak and write in ways that are naughty or nice. Let’s stick with that seasonal theme as we move from the Christmas season into resolutions and forecasts for the New Year, and consider the past year and what’s ahead.

For both this year and next, the controversy over the National Security Agency and its electronic surveillance programs will be the “gift that keeps on giving.”

With regular revelations of top-secret details, and a federal district court decision just days ago declaring some elements of the NSA programs unconstitutional, the top story of 2013 in the area of privacy, press and individual rights most likely will be the top story for at least the first six months of 2014.

A presidential advisory board examining NSA policies recommended on Tuesday that the agency be blocked from storing massive amounts of data on Americans’ telephone records, and that court orders be required to conduct individual searches. But officials charged with preventing terror attacks said such restrictions will seriously slow efforts to prevent such attacks. And on Thursday, veteran national security writer Walter Pincus of The Washington Post wrote that “the vast majority” of 1.7 million classified documents that former NSA contractor Edward Snowden took with him in fleeing the U.S. have not yet been “leaked.”

Free press advocates supporting a federal shield law — protecting journalists from being compelled in court to disclose sources — got an early present from President Obama. In June, he responded to a controversy over Justice Department seizures of press telephone records of The Associated Press, and phone and e-mail records of a Fox News correspondent by throwing administration support behind the bill. In 2010, following disclosure of U.S. secret cables and reports by the group Wikileaks, Obama opposed a similar bill.

Still, the Grinch that is Congress pushed any chance of opening that gift to a free press into the New Year, as the Free Flow of Information Act languished in the Senate in December — though some forecast a floor vote on the bill as early as January.

News photographers reporting on the President ended the year battling administration policies they say freeze out news media lenses in favor of the official White House camera. At a meeting Tuesday between top news media representatives and White House Press Secretary Jay Carney, they agreed to continue talks in January about access for photo journalists to President Obama’s public events and appearances.

Not much under the First Amendment holiday tree for Freedom of Information advocates — who see little in the way of major changes in laws to encourage “transparency” in government, but also continued problems in getting open access to officials who can interpret or explain policies, or parse increasing amounts of raw data available on government websites.

And then there’s an issue highlighted by — but not limited to — the NSA disclosures: The huge amount of data about us held by “third-parties” — private companies ranging from retailers to phone companies to internet providers. Not subject to FOI laws like government data bases, but vulnerable to government subpoenas or secret agreements with agencies, these information icebergs sail along like their real-world counterparts — with much of their bulk generally out of sight. Santa may reside in a toyshop at the North Pole, but deep details of our daily routines live in these private sanctorums-in-cyberspace.

FoxNews.com reporter Jana Winter got the best gift of all — freedom — on Dec. 10 from the New York state Court of Appeals. It ruled she did not have to comply with a subpoena that would have forced her to choose in a Colorado court between going to jail and revealing confidential sources. The New York court said Winter was protected by that state’s “absolute” shield law — and not subject to Colorado’s significantly weaker law — from having to identify the sources of a story about a revealing notebook kept by accused Aurora, Colo., movie theater gunman James Holmes.

As we head into 2014, ultimately the best gift we can present to ourselves is continued vigilance about our First Amendment rights. And with that thought, to all a good night.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.