MUST WE KEEP SECRETS?
Constitution Day: The 1st Amendment, whistleblowers, and surveillance of newsrooms

Beginning in June, newspaper and online coverage of Edward Snowden’s leaks of National Security Agency documents exposed multiple layers of government spying on Americans. The NSA documents, published by the Guardian in Britain, the Washington Post, and others, revealed that the U.S. government:

News media across the country are concerned, realizing that reporters and newsrooms are subject to government spying while exercising their First Amendment freedom to serve as a watchdog on government. As stories about the NSA documents unfolded, the KU Law chapter of the American Constitution Society invited Charles D. "Chuck" Tobin to speak about government surveillance and the First Amendment rights of whistleblowers, reporters, and the media at 12:30 p.m. Sept. 17, Constitution Day, in Room 104 of Green Hall. A lunch of Chipotle burritos will be available to KU Law students who attend.

A respected litigator of First Amendment matters, Tobin has represented media clients in state and federal trials and appeals around the country. He criticizes court rulings that diminish the First Amendment rights of citizens who lack a press pass.

“Some courts still seem to remember that the First Amendment is meant to protect speech – everyone’s speech,” Tobin wrote in “First Amendment Caste System,” appearing in the January 2010 edition of Communication Lawyer.

Before the Snowden revelations, Tobin had been working on resolving conflicts that developed between journalists and the Justice Department this summer following the discovery that AP reporters and a Fox news reporter had been placed under targeted surveillance because of their reporting.

So far, no reporters have been arrested or charged in the summer’s dramatic exposures of U.S. government secrets, but pundits, Twitter users, bloggers, and others have suggested that Guardian reporter Glenn Greenwald should be prosecuted for reporting about the documents leaked to him by Snowden.

Protections for whistleblowers are particularly tenuous. Throughout the summer, various elected officials called for the extradition and arrest of Snowden. In July, as Snowden evaded U.S. authorities in Russia, the U.S. Army finished its court martial of another whistleblower, Bradley Manning. Then a private first class, in 2010 Manning showed the world via Wikileaks a 2007 video of a U.S. helicopter machine-gunning a family van in Baghdad as its occupants tried to rescue a severely injured Reuters employee. Manning, an Army intelligence analyst, released the video with 740,000 secret U.S. government documents. Convicted of violating the Espionage Act in July, Manning was sentenced to 35 years in prison in August. (After sentencing, Manning disclosed a lifelong gender identity conflict and publicly sought to be recognized as a female, Chelsea Manning.)

Tobin’s visit to KU is sponsored by KU’s law student chapter of the American Constitution Society, with support from the Kansas Bar Association and its Media Bar Committee, as well as the Media, Law and Technology program at the School of Law. He will participate in several Constitution Day events at the law school. Tobin chairs the national media practice team for the Holland & Knight law firm in Washington, D.C. Tobin previously served as chair of the American Bar Association’s Forum on Communications Law and as in-house counsel for USA Today publisher Gannett Co., Inc., which owns media outlets nationwide.

— Mark Kind is president of KU Law’s chapter of the American Constitution Society.

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