Strategic leaks, restricted access, and freedom of the press

Freedom of the press usually means no prior restraint.  That is, anyone can publish anything, whether or not the government likes it.  While a lack of prior restraint seems to be a necessary condition for freedom of the press, I am becoming increasingly convinced that it is not a sufficient condition.  It is possible for government to have a significant impact on news by restricting access to reporters who are likely to write favorable stories.  A mild version of this is when disliked members of the press are not invited to news conferences.  A extreme version involves selective leaks to press who will spin a story positively.

The problem was aptly noted by a number of press organizations in an open letter to President Obama.

Over the past two decades, public agencies have increasingly prohibited staff from communicating with journalists unless they go through public affairs offices or through political appointees. This trend has been especially pronounced in the federal government. We consider these restrictions a form of censorship — an attempt to control what the public is allowed to see and hear.

The stifling of free expression is happening despite your pledge on your first day in office to bring “a new era of openness” to federal government – and the subsequent executive orders and directives which were supposed to bring such openness about.

Recent research has indicated the problem is getting worse throughout the nation, particularly at the federal level. Journalists are reporting that most federal agencies prohibit their employees from communicating with the press unless the bosses have public relations staffers sitting in on the conversations. Contact is often blocked completely. When public affairs officers speak, even about routine public matters, they often do so confidentially in spite of having the title “spokesperson.” Reporters seeking interviews are expected to seek permission, often providing questions in advance. Delays can stretch for days, longer than most deadlines allow. Public affairs officers might send their own written responses of slick non-answers. Agencies hold on-background press conferences with unnamed officials, on a not-for-attribution basis.

In many cases, this is clearly being done to control what information journalists – and the audience they serve – have access to. A survey found 40 percent of public affairs officers admitted they blocked certain reporters because they did not like what they wrote.

A more insidious example occurred recently when national security secrets were leaked to the AP in order to have the scoop come from a more friendly source than The Intercept.  Reading the first paragraph of each piece, it is clear which is more critical of the government.

The Terrorist Identities Datamart Environment, or TIDE, is a huge, classified database of people known to be terrorists, those who are suspected of having ties to terrorism, and in some cases those who are related to or are associates of known or suspected terrorists. It feeds to smaller lists that restrict people’s abilities to travel on commercial airlines to or within the U.S.


Nearly half of the people on the U.S. government’s widely shared database of terrorist suspects are not connected to any known terrorist group, according to classified government documents obtained by The Intercept.

I am not a lawyer, nor do I have a particularly deep understanding of the first amendment.  Nevertheless, such actions by the government have a significant impact on how news is reported.  At the very least, we should consider the meaning of such government action with regard to freedom of the press.

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