By Howard Kurtz
Independent counsel Kenneth W. Starr has invoked the First Amendment in his increasingly controversial investigation of President Clinton. Many legal experts say that, constitutionally speaking, he's off base.
On Wednesday, Starr defended his decision to subpoena White House officials whom he suspects of spreading "misinformation and distorted information" about his probe and some of the prosecutors working for him. "The First Amendment is interested in the truth," Starr told reporters.
It wasn't precisely clear what Starr meant, since the constitutional amendment -- barring Congress from making any law against freedom of speech -- does not distinguish between truth and falsehood. But he may have been suggesting that the First Amendment does not protect potential witnesses who are spreading misinformation, a distinction challenged by several attorneys. Even those who make false charges enjoy constitutional protection, they say, although such people can always be sued for libel.
"The First Amendment tolerates a certain amount of error in the spirit of fostering robust debate," said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press.
"The First Amendment is a shield," said Steven Shiffrin, a professor of law at Cornell University. "It's certainly not a sword in Ken Starr's hands, even though he may think it is." Shiffrin called Starr's citation of the First Amendment "a smoke screen for what appears to be retaliation for criticism against him. That's way out of bounds."
"The First Amendment is about making sure the government doesn't play a role in determining what truth is," said Washington lawyer Lee Levine. Starr, said Levine, "knows better than to suggest that a prosecutor can invoke the First Amendment for the purpose of rationalizing an inquiry into determining the truth."
But media lawyer Bruce Sanford, who has worked with Starr in private practice, defended the prosecutor. "He's free to use the First Amendment for that argument," Sanford said. "He's saying there's a First Amendment interest in the truthful dissemination of information. And if people are trying to obstruct the independent counsel's inquiry by dissemination of untruthful information, then he has a First Amendment interest in stopping that."
White House aide Sidney Blumenthal, a former journalist who frequently deals with the press, testified yesterday before a federal grand jury in the Monica S. Lewinsky probe. Blumenthal said the prosecutors demanded to know which reporters and news organizations he had spoken with about members of Starr's staff, and what was said. The White House has acknowledged circulating newspaper clips involving the prosecutorial records of two Starr deputies.
The traditional remedy when someone is accused of spreading harmful untruths is a libel suit. Truth is a defense in such lawsuits; when a public figure is the target, the defendant must be shown to have acted with reckless disregard for the truth, even if his information was wrong.
A prosecutor, however, can construe such misinformation as potential obstruction of justice. Starr said Wednesday that "the grand jury has a legitimate interest in inquiring into whether there is an effort to impede our investigation."
Starr has said that his office has received numerous press queries in recent weeks raising questions about the public and private pasts of some prosecutors. He said some reporters told his office their information came from the White House.
The only reports that are known to have appeared in print, however, are recycled stories of some years ago concerning two prosecutors -- Michael Emmick and Bruce Udolf -- who were involved in controversial cases in which their professional conduct was criticized. The White House has openly acknowledged circulating this previously published information.
© Copyright 1998 The Washington Post Company