Dear colleagues,

The recent news about the FBI’s seizure of the phone and email records of Fox News employees, including James Rosen, calls into question whether the federal government is meeting its constitutional obligation to preserve and protect a free press in the United States. We reject the government’s efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a “co-conspirator” in a crime. I know how concerned you are because so many of you have asked me: why should the government make me afraid to use a work phone or email account to gather news or even call a friend or family member? Well, they shouldn’t have done it. The administration’s attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time. We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth.

The Obama administration already has pursued more criminal leak investigations than all of its predecessors. There is a worrisome trend here, also recently evident in the government’s pursuit of Associated Press telephone records in a different leak investigation. Yes, the government must have secrets in order to function. But overclassification is so rampant that to criminalize the disclosure of all secret information would come close to paralyzing the flow of information.

Perhaps prosecutors failed to read the Justice Department’s policy on this, which declares: “Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.” That statement goes back four decades. The Obama administration should recommit to its spirit.

ED HENRY: Nobody has said anything like that, but what I find most interesting is when I was covering the Bush administration and asking very similar questions of Dana Perino and the late Tony Snow before that, I had a lot of my colleagues in private saying things like, you know, sort of cheering me on. Then when I was at Fox covering the Obama administration, it can get a little bit lonely sometimes.

People don’t necessarily think – and when I say cheer you on in the Bush administration, I didn’t mean necessarily that it was partisan or that they were saying “Let’s go after the administration.” It’s just, when you’re in the front row at the White House Briefing Room, you’re supposed to be challenging authority. Whether it’s Republican, Democrat, Independent you’re supposed to be taking on power asking tough questions. They’re not always going to like those questions, but that’s why we’re there. If you’re not going to ask tough questions, just get the heck out of the way.

And so I do find it interesting now that it does seem like a growing number of people are pressing the administration, and I think that’s healthy. I don’t think that anybody should be attacking the administration. I don’t think anybody should be going overboard. But if we’re going to be sitting there in the Briefing Room, let’s not be a bunch of lemmings. Let’s actually stand up and ask tough questions. If the administration has answers to them, great, move on to the next story. But if their answers keep changing, you better keep asking them the questions over and over.”

I understand that professional journalists are on the front lines of the First Amendment’s free-press clause. But many elite outlets and journalism schools foster a guild mentality that sees journalism as a priestly caste deserving of special privileges. That’s why editorial boards love campaign-finance restrictions: They don’t like editorial competition from outside their ranks. Such elitism never made sense, but it’s particularly idiotic at a moment when technology — Twitter, Facebook, Tumblr, Vine, etc. — is democratizing political speech.

The second problem is that the First Amendment is about more than the press. In public discussion, First Amendment “experts” and “watchdogs” are really scholars and activists specializing in the little slice dedicated to the press. The Newseum, a gaudy palace in the nation’s capital celebrating the news industry, ostentatiously reprints the entire First Amendment on its facade. But if the curators of the Newseum are much interested in the free exercise of religion or the rights of the people peaceably to assemble, I’ve seen no evidence of it…

By all means, journalists should be outraged by the president’s attitude toward the press. But if you’re going to call yourself a defender of the First Amendment, please defend the whole thing and not just the parts you make a living from.

More than 50 news organizations (Reuters, Gannett, the New York Times, and so on) signed a letter protesting the AP subpoenas, and of course journalism guilds like the Society of Professional Journalists are using the subpoenas to agitate on behalf of the Free Flow of Information Act—and for the same reason guilds always lobby the government for special privileges. The act will go a long way toward establishing a government-sanctioned journalistic class. There will be, on the one hand, approved reporters who are immune to certain kinds of governmental inquiry, and, on the other hand, everyone else, those less exalted citizens who, faced with the same governmental inquiry, would just have to suck it up. The act is a classic restraint of trade, protecting favored journalists from the pressure of competitors who lack the proper credential…

Our guess is that Schumer’s act won’t go anywhere, precisely because its support among legislators is a panicked response to a jarring event, and its support from the president, a much cooler customer, is an expedient, a mere gesture. Yet the act’s revival, however hopeless and fleeting, is worth following. It has exposed yet again the self-aggrandizing pose of the establishment press—the instinct of Reuters and Gannett and the rest to confuse the interests of their own industry with a flourishing First Amendment. Trust us: If Gannett and Reuters went toes-up tomorrow, the First Amendment wouldn’t notice.

I’ve always considered the relationship between Barack Obama and the Media to be a lot less genuine than is commonly believed: there’s no real emotional connection on the corporate* level. Barack Obama has always approached the Media with a certain inherent cynical contempt that only got more and more brazen as the years went on and nobody reacted to never being given press conferences and seeing local media be punished for non-flattering coverage and having reporters stuffed in closets and whatnot. And, for its part… the Media as a corporate entity likes Barack Obama the way that I like a rib-eye steak. They loved reporting his rise; they loved celebrating his victories; they love narrating his travails; and they will absolutely love chronicling his fall. And once they’re done with all of that, the Media will write sad, brave little pieces about the endgame for the latest iteration of the Camelot myth – and never explain that they themselves helped set up that scenario, because it’s one of their favorite stories. One that they will revisit, just as soon as they can.

In saying this, we don’t mean to suggest that journalists won’t ask tough questions or say critical things about the administration from time to time. But sooner or later they will—with a few impressive exceptions—revert to their ways. We are, after all, dealing with deeply ingrained habits and ideological commitments…

So what explains the media’s abstemiousness when facing such glaring examples of dissembling, intimidation, and abuse of power? Three things. The first is journalistic enchantment with Barack Obama that began for some in 2004, for many others in 2008, and has never really gone away. When they look at the president and his top advisers, they see a reflection of their own background, education, and sympathies—and sometimes they see their former colleagues and even family members. The media therefore give the administration the presumption of good faith. If scandals did occur on Obama’s watch, it was simply because he wasn’t as engaged as he should have been.

A second reason is rooted in the attitude many journalists have toward Barack Obama’s political opponents. They judge Obama well because they view his critics with contempt, which is why journalists are working so hard to make these scandals about GOP partisanship and overreach. Why else would the New York Times use a headline that reads: “I.R.S. Focus on Conservatives Gives GOP an Issue to Seize On”?

A third explanation is that the vast majority of journalists are highly sympathetic to a large federal government, and they know where these scandals, if pursued vigorously, will lead—to a further deepening distrust of government. A new Fox News poll shows that more than two-thirds of voters feel the government is out of control and threatening their civil liberties. Journalists are aware that these scandals have the potential to deal a devastating blow to their progressive ideology, which is why they will downplay these stories as much as they can.

“For once, many in the media, who were kind of lapdogs to this administration, have suddenly become watchdogs.”