Whenever there is a scandal involving an alleged
infringement of the rights of the press by the government, it is inevitable
that talking heads of the opposite party will decry this invasion and
temporarily take up Hugo Black’s absolutist approach to the First
Amendment. “Congress shall make no law!”
bellow these pundits, expressing outrage at the government’s infringement
of this blanket prohibition. After a
week or two, some talking heads return to a more practical approach to the
First Amendment while most (thankfully) cease opining on the issue altogether.
The current situation involving allegations that
the Department of Justice invaded the privacy of Fox News’ James Rosen is no different. Pundits lament
that this is an outrage because of the First Amendment’s absolute prohibition
on infringing the freedom of the press.
While I agree that freedom of the press is important and that something
fishy probably happened, I am nevertheless irritated by people who reach these
right results for dangerously wrong reasons.
There is, of course, the boring, sensible argument against the pundits: the First Amendment is
not absolute, and speech and even freedom of the press can be constrained in
certain situations.
But there is an even bigger (and funnier) problem with the talking
heads in this situation. It is a problem that should be apparent
even in the simplistic world of memes, pictures with quotes, and
catchphrases. The talking heads, so
obsessed with the simple text of the first five words of the First Amendment,
have ignored the simple text of the first word of the First Amendment. The Department of Justice is part of the executive branch, not Congress. These
pundits, so obsessed with the helpful “make no law” language of the First
Amendment, have bypassed text that, on its face, cancels out their entire
complaint.
I am not arguing that pundits are wrong to argue
that there are potential First Amendment implications in the Rosen situation. I am certainly not arguing that the First
Amendment only applies to acts of Congress – to do so would be to ignore a
great deal of First Amendment law. I raise this point to show that these folks who have somehow gotten the
media’s attention are not only oversimplifying the intricacies of First
Amendment law, but they are advancing an argument is flatly contradicted by their own simplistic logic. Listen to them at your own risk.
For more on the delightful peculiarity that is the
first word of the First Amendment, I recommend these relevantly titled
articles:
Mark P. Denbeaux, The First Word of the First Amendment, 80 Nw. U. L. Rev. 1156 (1986) (unfortunately only available on Westlaw).
Daniel J. Hemel, Executive Action and the First Amendment’s First Word, 40 Pepp. L. Rev. 601 (2013) (available here).
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