Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard Law School. Stuart M. Gerson served as assistant attorney general under President George H.W. Bush and as acting attorney general in the early months of President Bill Clinton’s administration. Dennis Aftergut is a former federal prosecutor, currently of counsel at the Renne Public Law Group in San Francisco.
Newspeople are front-line defenders of our republic, much as the Capitol Police and other law enforcement officials were on Jan. 6. While all who attacked the Capitol six months ago should be held accountable, prioritizing prosecution of individuals who assault the press or police is paramount. Without the work of both, our security and democracy are at existential risk.
The authors of our Constitution, having declared independence from an imperial king who supposedly could do no wrong, knew in their bones the primacy of a free press. As Thomas Jefferson wrote from Paris in a 1786 letter, “Our liberty depends on freedom of the press and that cannot be limited without being lost.”
In the Pentagon Papers case 50 years ago, Supreme Court Justice Hugo Black elaborated on Jefferson’s thought: “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 protected so that it could . . . inform the people,” Black wrote, and “prevent any part of the government from deceiving the people.”
Autocrats take the opposite approach. That is why attacks on truth and journalists are always among their first plays. Russian President Vladimir Putin, Chinese President Xi Jinping and Brazil’s strongman, Jair Bolsonaro, are standout contemporary practitioners.
Twentieth-century communist dictators Joseph Stalin and Mao Zedong branded the press and other critics as “enemies of the people,” treating unfriendly media reports as “fake news.” (Sound familiar?) Benito Mussolini suppressed Italy’s free press in his first months in power.
Adolf Hitler did not wait that long. Within weeks of becoming Germany’s chancellor in 1933, he had stormtroopers ransack the offices of the Munich Post, his most vocal press critic. Notably, the road leading to the Munich Post attack was paved by private vigilantes. “Brownshirts” were deployed by the Nazi Party, before it gained power, to intimidate journalists and attack newspaper publishers.
History shows what can happen when such atrocities go unchecked. It also shows that verbal attacks against journalists can escalate, as we have all seen in this country and abroad. The murder of 12 people at the Paris office of the satirical newspaper Charlie Hebdo in 2015, and the 2018 Saudi assassination of Post contributing columnist Jamal Khashoggi make the point all too well.
Attorney General Merrick Garland evidently recognizes that the country cannot afford to tolerate press intimidation by vigilante assault. President Donald Trump frequently derided factual information as “fake news,” which helped disinformation to spread. His verbal assaults against the media and years of aggressive speech, including threatening journalists, plainly fueled the Jan. 6 rioters’ physical attacks against reporters.
The Justice Department is putting a needed roadblock on the treacherous path toward autocracy — prosecuting violent acts against a free press. This is not related to whether Trump runs again for president. Indictment and conviction are the surest deterrents in accountability’s tool kit. Felony convictions, usually followed by prison time, cut down to size even the high and mighty.
Going forward, prosecutions for using violence against journalists during the events of Jan. 6 will help squelch any notion that it is open season on reporters. Extremists who might otherwise consider physical assaults against newsmen and newswomen will see that they ought to think twice. FBI Director Christopher A. Wray and the attorney general are giving journalists the protection that they, and our nation, require and deserve.
It’s also essential for the Justice Department to investigate and, if the evidence warrants, prosecute under the federal anti-insurrection statute (18 U.S. Code Sec. 2383), all who gave “aid and comfort” to those who violently attacked our democracy and its central institutions for passing power to those who won free and fair elections. Without those institutions, freedom of the press would be but an illusion.