"You should refund this overpayment of $105,240.00 within 30 days."
Michael Kinsley goes after Glenn Greenwald in a nasty review that was just published by the New York Times and that will appear in this Sunday’s Week in Review.
At stake not only is Greenwald’s reputation but the very notion of what constitutes freedom of the press on national security issues.
Kinsley dumps on Greenwald with ad hominem attacks, saying, “Greenwald seems like a self-righteous sourpuss,” and calling him bombastic and comparing him to Robespierre and Trotsky.
More seriously, he takes the side of David Gregory, host of Meet the Press, who asked Greenwald, “To the extent that you have aided and abetted Snowden . . . why shouldn’t you, Mr. Greenwald, be charged with a crime?”
Gregory properly caught a lot of guff for that question, but Kinsley says it was “a perfectly reasonable question.” In fact, he essentially asks it himself. “What do we do about leaks of government information? Lock up the perpetrators or give them the Pulitzer Prize? (The Pulitzer people chose the second option.) This is not a straightforward or easy question.”
Kinsley doesn’t believe that journalists should be free to publish things the government dubs “secret,” even though reporting on hidden and unlawful or unethical government activities is what good reporters do. “The question is who decides,” he writes. “It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences.”
His answer is that the government should be the ultimate publisher. “That decision must ultimately be made by the government,” he said. Recognizing that this may impede the free flow of news, he added: “No doubt the government will usually be overprotective of its secrets, and so the process of decision-making—whatever it turns out to be—should openly tilt in favor of publication with minimal delay.”
That sounds like Kinsley prefers an Office of Censorship.
He disregards the Supreme Court’s ruling in the 1971 Pentagon Papers case that “any system of prior restraints of expression” carries “a heavy presumption against its constitutional validity.”
And Kinsley is almost 180 degrees from Hugo Black’s concurring opinion, in which the justice eloquently stated:
“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. To find that the President has 'inherent power' to halt the publication of news ... would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' ”
For his part, Kinsley doesn’t believe that journalists or journalism are afforded any special protection. “The Constitution is for everyone,” he writes. “There shouldn’t be a special class of people called ‘journalists’ with privileges like publishing secret government documents.”
But the Constitution expressly commands that Congress (and by implication the President) “shall make no law … abridging the freedom … of the press.”
As Hugo Black noted, the First Amendment explicitly protects the journalistic profession in unequivocal terms. And it does so for the best of reasons: to serve as a check on the very government that Kinsley wants to give more power to.