By Berl Falbaum
As the U.S. Department of Justice (DOJ) and a federal judge work to thread a very small eye of a needle in trying to balance public interest and national security, some of the country's most powerful media institutions filed court papers basically saying, "let the consequences be damned."
These media organizations have asked, in court papers, that the affidavit used by the DOJ to justify its raid of former President Trump's residence, Mar-a-Lago, be made public even if the information compromises national security and endangers the lives of security personnel and witnesses.
In effect, they want the government to turn over this information to private, profit-making companies who are accountable to no one.
The organizations which filed the court papers included The New York Times, The Wall Street Journal, The Washington Post, CNN, the AP and some others.
Their posture can only be described as irresponsible, reckless, and very dangerous.
It is one thing for the media to pressure government officials to make public documents and information that rightly should be in the public domain and, for example, illegal activities by public officials, even a president (think Nixon-Watergate, Pentagon Papers). That is a proper role of the press. It is quite another to demand materials that would make public highly sensitive national security information and put personnel at risk.
Let's consider some of the issues involved, beginning with the claim of freedom of the press.
Press freedom-the First Amendment-is not an absolute. We have many constitutional restraints, including libel, right to privacy provisions, trade mark and copyright laws, other restrictions and, as in this case, limitations on what might compromise national security.
If the media were granted its demands, no one could control how this information would be used. Then, consider how it would play in today's world on the Internet. If that doesn't give you goose bumps, nothing will. The negative fallout and damage could be incalculable.
Also, consider the precedent this would set if the court were to approve these demands of the media. Freedom of the press does not belong to those in the news business. The media make a serious error when they imply-as they do-that press freedom is a proprietary right, that it belongs to them.
The press does not enjoy any special rights not shared by everyone else in a democratic society. The U.S. Supreme Court made that very clear in the 1972 Branzburg v. Hayes case when the media argued that members of the news media should not be required to testify about their sources before grand juries.
In the majority opinion, Justice Byron White wrote that it was inappropriate "to grant newsmen a testimonial privilege that other citizens do not enjoy."
The court also said that granting the media the right not to testify in grand jury proceedings would suggest that the public is better served by having news coverage of crime rather than having criminals prosecuted.
The First Amendment assures freedom of the press to every single American not just those giant corporations which have filed the respective court papers. It protects the right of anyone to write or speak within the limitations of constitutional restrictions.
Granting the request to make the entire affidavit public would permit anyone to demand disclosure of highly sensitive documents, whether they work for The New York Times or publish a one-page newsletter in their subdivision.
When the media appoint themselves as watchdogs for the public, they must realize that this is a self-appointed role. They enjoy no mandate from the public to serve as its surrogate.
Further, the argument that the "public has a right to know" is not embedded in constitutional law. The phrase was coined by an AP writer, Kenneth Cooper, in the mid-1940s. It caught on and since has been used to imply that the public's right to know is protected by the First Amendment.
But let us consider, for argument's sake, that it is a constitutional concept. Would it be absolute? Would it mean that the media must have access to the most sensitive information, including nuclear secrets, when the country might be preparing for war, military troop movements, spy operations and countless other secrets. Of course not.
Not only does the public not have a constitutional right to know, but I feel fairly confident that, if asked, the public would not want its most sensitive secrets splashed across the front pages of the nation's newspapers or serve as lead stories for TV news broadcasts.
It is true that, at times, it is not easy to make distinctions between what serves the public interest and should be revealed and what should remain secret to protect national security.
However, in the case before us, in filing court briefs to make the affidavit public, the media have displayed an unnerving arrogance. We can be thankful that the request is before federal Judge Bruce E. Reinhart, who in his rulings thus far has recognized what is at stake.
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Berl Falbaum is a veteran political journalist and the author of 12 books.
