Although Judge Robert H. Bork has shown himself to be a friend of the press when individuals object to what is published and sue for libel, he does not believe it's the judiciary's role to help journalists obtain information or otherwise do battle with the government.
In fact, Bork once issued a barely veiled threat against those in the media who believe it's their duty to be the public's watchdogs against government misbehavior -- and especially those who have the effrontery to challenge the courts.
In 1979 Bork wrote: "It seems to me particularly dangerous for the press to attack the judiciary as government, and therefore inherently an adversary, when the press depends upon the judiciary for the protections of the First Amendment."
Bork seems to feel that the press is entitled to certain rights -- as long as it doesn't get too uppity in exercising them. This, he has stated, could lead to antipress decisions and more government regulation.
"The press may properly claim great freedom," he has written. "It may not claim -- or at least it is not likely to do so successfully -- the exclusive or the special possession of it."
This rejection of a special, privileged status for the press comes through loud and clear in Bork's appellate court decisions in Freedom of Information Act cases. Consistently, when a reporter or individual has asked for information under FOIA and a government agency has withheld documents for security reasons, Bork has ruled for secrecy. Here are some illustrative FOIA cases researched by our associate Corky Johnson:When our former associate Donald Goldberg asked to see the results of a State Department questionnaire sent out to U.S. ambassadors on their host countries' diplomatic practices, the department refused to release parts of the responses on grounds that they were "confidential." Our attorney argued that most of the ambassadors had marked their questionnaires "unclassified."
But Bork and his appellate court colleagues ruled for the State Department, saying that government agencies have the authority to reclassify documents at will, and it is up to the journalist to produce evidence to show the reclassification was in error. In Meeropol v. Meese, the children of executed Soviet spies Julius and Ethel Rosenberg had used FOIA to seek FBI documents on their parents' case. The FBI withheld documents that it claimed were entitled to exemptions by reason of national security, privacy and law enforcement needs. Bork's opinion on "perhaps the most extensive FOIA request ever made" said the FBI's withholding of the documents was proper. In McGehee v. CIA, the court ruled that the agency had the burden of proving it had made a thorough search of records in an FOIA suit. Bork dissented, saying there was no evidence of bad faith by the CIA, but merely "bureaucratic inefficiency." In Sims v. CIA, Bork dissented in the appeals court ruling that the agency could not withhold names of people and institutions used in a research program, arguing that anonymity helps preserve "sources of valuable intelligence."
It is doubtful that Bork would have been similarly concerned at the prospect that the press might lose sources of information as the result of a court ruling.