Richard Nixon is safely retired on the California coast, but the federal judges he appointed still pollute the federal judiciary. The Nixon attitudes - the denial of the right of the citizen to know or of the press to publish, the reflex hostility to every attempt to hold the government to account or question its motives - are now being imposed on the nation by the courts.
In a series of rulings, the Supreme Court has held that the government has the right to rummage through newsmen's files but that newmen have no right to examine the government's files. Only last week, the Nixon court - the chief justice and three other are Nixon appointees - ruled that the First Amendment guarantees neither the press nor public a right of access to information generated by the government. Emboldened by this attitude on high, Federal Judge Oren Lewis denied the right of a former agent, Frank Snepp, to publish an unauthorised book about the Central Intelligence Agency. The aggrieved CIA did not argue, mind you, that Snepp had published classified information; he had only disclosed embarrassing information.
He revealed, for example, that CIA officials had left behind in Vietnam many Vietnamese who had collaborated with them and that the CIA had abandoned computerized files on agents and collaborators. The files were captured intact by the North Vietnamese, who proceeded to retaliate against the deserted collaborators.
Certainly this was a scandal that should have been reported to the sovereigns who have authority over the CIA. But some judges can't seem to get it through their heads that the sovereigns are not the CIA and FBI directors, not the Joint Chiefs of Staff, not even the president. In this country, the people are the sovereigns.
Yet the recent court rulings tend to elevate government officials to the status of sovereigns. These dangerous decisions enhance their authority to classify embarrassing facts, to shut off channels of information and to intimidate news sources. We may still be free to elect our leaders, but this freedom can be abridge by leaders who curtail our knowledge of their activities.
The question of how much information the government should give out - and how much the people are entitled to know - may never be precisely defined. Most people would agree that the government, for the protection of its citizens, need not always tell every last detail about every situation. But government officials should not be allowed to perpetuate themselves in power and to conceal wrongful policies by barring the public's access to unfavorable facts.
Under the spirit of Jeffersonianism, which explicitly valued a probing press above government itself, impugned public records should be thrown open to newsmen and actions should be taken to convict or clear those charged with defiling their public trust. What the courts have done, however, is to deny newsmen access to government misdeeds and to compel them to identify their confidential sources so the whistleblowers inside government can be either discredited or gotten to. The courts have grown so contemptuous of the press that they have proceeded by contempt citation and imprisonment to deter investigative reporters.
To Americans - who are a scattering of peoples from other lands, of refugees from other systems of government with no common denominator of religion, geography, heredity - patriotism cannot be anchored in the old homogeneities and must resolve around common adherence to a distinct set of ideas.
These are tha ideas expounded by Jefferson and popularized further by Lincoln, concerning the rights of the people - to know, to dissent, to be treated equally, to rule themselves, to run their governmental processes, to be the judges of government and not just the subjects. It is this fragile nucleus of American distinctiveness that lends nobility to the work of the free press.
This concept of patriotism is in direct confrontation with Hohenzollern version we are now hearing from the courts - that the national interest is embodied in the particular government in office, that it is damaged by disparaging government leaders, exposing scandals, creating a spirit of cynicism toward the government, tying up the processes of government in the investigation of scandals when officials should be performing daily wonders.
Muckraking is, in the Jeffersonian view, the highest patriotism. The alien patriotism being preached by the courts leads only to the eventual collapse of an uncriticized, corrupt, hollow shell - such as happened to Hapsburg, Hohenzollern and Romanov regimes in 1917-18. But if the American idea is valid, an impeachment once in awhile, like the pruning of a rotten branch, will only strengthen the great tree that grows not in darkness but in sunlight.
Footnote: Not all federal judges, of course, agree with the Nixon-tainted justices who now dominate the Supreme Court. Justice John Paul Stevens, objecting to the latest restrictions on the press, warned that "information-gathering is entitled to some measure of constitutional protection," not for "private benefit of those who might qualify as representatives of the 'press,' but to ensure that the citizens are fully informed regarding matters of public interest and importance." And Justice Potter Steward reminded his colleagues: "That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident but an acknowledgement of the critical role played by the press in American society."