Anonymous NYT Op-Ed: A Look At Legal Precedent Behind Press Protections

On September 6th, President Trump took to his notorious Twitter account to deliver a scathing response to an anonymous New York Times op-ed claiming to be authored by a member of the Trump administration. The President questioned the validity of the piece and its author, known as “Lodestar,” calling for the Times to turn this person in for “National Security purposes.”

The following day, the President requested that Attorney General Jeff Sessions, whom Trump has been on the outs with lately, to investigate the source of the leak. Going beyond simply asking for the identity of the anonymous author, this official step brings up a host of questions about the potential justification of prying into the business of journalism.

It may seem understandable that an insider in the President’s office publishing their accounts of a supposed counter-attack upon the President’s “worst inclinations” would be a threat to the sanctity of the republic. However, the United States has a long history of stare decisis supporting the freedom of journalists to protect their sources.

So, is the President justified in his request for the Times to turn over the source of the piece? In my opinion, the short answer is no. Keep in mind, this opinion is based entirely on my own knowledge and understanding of the legal issue at hand, and not on some desire to disagree with everything President Trump says. I sympathize with his position – I can imagine how difficult it is to operate with questions like this incessantly buzzing around your every move. However, this would simply be an overreach of the power of the government to control the word of the people and fly in the face of decades of precedent.

For starters, let’s try to understand exactly what the “press-shield laws” in the United States are. The first and foremost protection afforded to the press is the First Amendment, which guarantees freedom of the press. However, it does not exactly specify what these freedoms do and do not consist of. This is where we turn to the courts, our trusted source for interpreting and expanding the Constitution as time passes.

In the District of Columbia case Zerilli v. Smith, the courts in 1981 held that the rights of a journalist to protect his sources outweighed the interests of the Attorney General to compel their reveal. This case cited myriad previous decisions, including the infamous 1971 Supreme Court case New York Times Co. v. United States.

In this decision, the courts held that the Times (and subsequently the Washington Post) had been falsely barred by the government from publishing sensitive documents about the Vietnam War, claiming that “the press was protected so that it could bare the secrets of government and inform the people.” The following year, the case of Branzburg v. Hayes acknowledged that the rights of the press are not absolute, but instead can be judged on a sort of sliding scale of relative importance.

It might appear as though a government insider spilling his or her guts to the world through the two-way mirror of the press would weigh pretty heavily on this scale. However, the information contained in the piece was not confidential, and therefore not in violation of the New York statute on the subject.

Furthermore, the precedent in the United States goes further than protecting journalists from contempt charges when they refuse to turn in whistle-blowers or leaks within an organization. As hard as it may be to believe, this case is not the first time a high-ranking government official has anonymously contradicted the sitting administration's policies in the press.

In 1828, southern states were in an uproar over the “Tariff of Abominations,” which was instituted under President John Quincy Adams in the interest of protecting northern businesses. Then-Vice President John C. Calhoun, an advocate of the interests of the south and their agricultural economy, took up his pen and paper and wrote the “South Carolina Exposition and Protest,” which advocated for “nullification.”

This was not only in stark contrast to the opinions of the President’s office, but also noteworthy in the sense that a federal official was advocating for the rights of the states to refuse to comply with federal laws. After the election of Andrew Jackson, who (in contrast to public opinion at the time of his campaign) was also not on the side of nullification, Calhoun continued to champion the cause of the “nullies.”

So, if the Vice President can secretly author a document which calls for the ignoring of federal laws, what is stopping “Lodestar” from sharing their opinion of the President’s thoughts and behaviors in the Times? The truth is, absolutely nothing. We may not like it, but it is completely legal for a member of the government to talk about that government freely in public, as long as they do not stray into the lane of classified and potentially dangerous information.

You as a citizen can choose to believe all or part of what you read and see; each person has the right to their opinions, regardless of their foundation (within reason, of course). By that same logic, media companies (which, as corporations, have the same rights as individuals) can spin whatever information they come across however they choose, short of intentionally misleading the public or jeopardizing things like national security.

Who knows if the information included in the newest scorn of President Trump is true. If the publishers have good faith that the source is genuine, it likely doesn’t even have to be true legally (ignoring general rules of ethics). However, as much as the President or anyone else may despise or disagree with it, the fact that it is allowed to exist is part of what makes this country free.

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