Pundits on the First Amendment: Wrong Even by Their Own Misguided Standards

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).