Lawyers and journalists -- law and journalism -- have much in common. Obligations to the truth. Reliance on experts. Right to be heard. Etc.
Right now we see the media's outrage at DOJ's subpoena of the phone records (home, cell, office) of AP reporters. DOJ was looking into leaks of classified information, which could be a crime. The content of the communications were not seized but the call records were.
Now it is certainly possible, maybe likely, that DOJ overreacted. But like lawyers, journalists believe their mission is so essential to civil society and other deep values that any government intrusion threatens (if it does not destroy) democracy (or for lawyers, the rule of law). You occasionally hear this outcry from lawyers when an appellate court rejects a claim of attorney-client privilege or limits the freedom of criminal defense lawyers to zealously defend their clients as they see fit.
Since the media is reporting on this event, it is not surprising that a well-rounded exploration of the issues, and they are weighty issues, has not yet emerged in the few sources I have read or watched. David Carr in the Times may be an exception. Well, it's still early. I mean there is another side, at least in principle although perhaps not a persuasive one on the facts here (we don't even know what all the facts are yet, but that's another story).
Tonight the PBS Newshour (maybe the only reason to buy a television) had a lawyer for AP, a prominent NYC first amendment lawyer, who made a strong case for his client. DOJ refused to send anyone to take the opposite view, wisely I think, which required Judy Woodruff to channel Eric Holder's public statements. She did not seem truly comfortable in that role.
Was there no one out there in media law land to -- not take the opposing view on the facts here, which (did I mention?) we do not yet fully know, but to explain the competing interests and put the episode in legal and histrorical context? The answer must be yes.
The AP lawyer made statements that a knowledgeable second guest might have corrected and refined. For example, he made reference to the "rules" governing subpoenas of media records and how these rules were broken. They may have been broken or not depending on the facts. (Did I mention that we don't yet have them all?) But more important, the rules are internal DOJ rules, good rules but not binding, and they do not create a legal right in the media.
The AP lawyer also implied (I think said, but I don't have the transcript) that the government's subpeona intefered with the media's constitutional right to gather news. There is no such general constitutional right (there may be minor exceptions, such as the right to cover trials), which is why there is no federal reporter's privilege. The media lost that case 5-4, or given Justice Powell's engimatic concurrence, 4 1/2 to 4 1/2, as Justice Stewart mused in dissent. The Constitution provides strong defenses to liability for publishing news (Times v. Sullivan and all that), but not a right to gather news.
I love the 1st Am. as much as anyone who came of age in the 1960s, and certainly anyone who spent time on the UC Berkeley campus in the fall of 1964, but I also believe that the reporting here needs more context and attention to nuance, even if, especially if, it comes from the media.