Obama has mixed First Amendment record
One in a series of articles on the First Amendment record and views of 2012 presidential candidates. Since this article was posted, Republican candidates Rick Santorum and Newt Gingrich have dropped out.
In its fourth year in office, the Obama administration has a mixed record on issues involving the First Amendment.
Freedom of Information
President Barack Obama broke from the Bush administration’s handling of information under the Freedom of Information Act by promising increased transparency within government. Obama issued Executive Order 13489 upon entering office, telling government agencies to be more proactive in releasing information to the public. Bothered by “too much secrecy” in past administrations, Obama said, “The government should not keep information confidential merely because public officials might be embarrassed by disclosure.”
Previously confidential files and rules have since been released for public scrutiny. In 2009, the Justice Department made public the Bush administration 8/1/02 Interrogation Opinion, commonly known as the “torture memos.” The controversial release sparked strong reactions from critics and supporters of enhanced interrogation of terrorism suspects.
In a similar shift to provide the public with information, the Environmental Protect Agency redrafted its policy to require companies and industries nationwide to release pollution reports.
Still, critics have assailed the administration for not living up to its lofty standards, citing the Justice Department’s refusal to release information concerning domestic wiretapping and surveillance of tourists and U.S. citizens. The department justified the refusal on privacy and national security grounds, according to spokeswoman Tracy Schmaler.
Open-government activists also point to the president’s handling of the Gulf oil spill as an example of unnecessary secrecy. Despite an official government report in 2010 saying the disaster was worse than anticipated, the Obama administration initially presented an overly optimistic portrayal of the cleanup’s success. Later made public, the report prompted Christopher D’Elia, an environmental-studies dean at Louisiana State University, to say that “the political process was in charge and science really does not have the role that was touted.”
Meanwhile, BP, the company responsible for the oil spill, accused the administration of improperly withholding scientific records that could show the government overestimated the amount of oil released in the spill.
Concerning foreign policy, the White House drew attention with its fight to withhold certain war images. In 2009, the administration challenged a court order that required the release of photos from the notorious prison in Iraq, Abu Ghraib. Depicting scenes involving American soldiers abusing prisoners, the pictures held the potential to incite harm against American soldiers fighting in the Middle East, according to the administration. Employing a similar rationale, the president has resisted requests to release graphic pictures of Osama bin Laden’s body after American troops killed him in 2011.
News outlets, including the Associated Press, have criticized the speed with which the administration has met FOIA requests. In 2011, the administration received 544,360 requests but left more than 12,000 of them unmet. Of the cases reviewed, the government denied requests in more than a third of the cases. The administration maintains that it has released more information than past administrations.
The release of classified information is sometimes embarrassing for the government. A House investigation recently publicly revealed the Justice Department’s mishandling of a sting operation named Fast and Furious near the Mexican border. The operation went awry when government agents lost track of hundreds of illegally purchased weapons that were then smuggled into Mexico. Two of the guns were later connected to the death of a U.S. Border patrol agent. Lawmakers issued a subpoena to acquire 80,000 documents related to the operation, but have complained that the Justice Department has given only some 6,000. Justice Department officials insist that release of the documents would impede “the department’s efforts to hold individuals accountable for their illegal acts.”
In 2009, the administration faced criticism for the irony of not allowing the public to attend federal seminars for employees on the Freedom of Information Act. It also drew ire in 2010 for making the White House Office of Management meetings secret, even though it was the agency tasked with constructing the administration’s transparency policy. The office would later release a related chain of e-mails describing the government’s information policy. However, the office censored 194 of the pages.
The administration has sought to establish a level playing field for religious and non-religious organizations when applying for access to government funds. Recognizing the contributions religious groups make within their communities, White House officials in 2009 stated their willingness to fund these groups through the economic stimulus package. Though the funding came with limits to keep groups from compromising the separation between church and state, the administration touted the commitment to faith-based groups as a pragmatic balance.
However, relations between the president and religious groups have not always been harmonious. Catholic leaders recently lambasted the administration’s health-insurance mandates requiring religiously affiliated organizations to provide free contraceptive insurance coverage for female employees. Outcry from Catholic bishops and other religious leaders prompted the president to compromise by mandating that insurance companies for religiously affiliated institutions provide the coverage. The revised rule drew praise from some groups, including the Catholic Health Association, Catholic Charities USA, and Catholics United. Others, including the U.S. Conference of Catholic Bishops, continue to oppose it.
Though not restrictive of the press, the Obama administration has repeatedly criticized news outlets. The most notable flap occurred in 2009 when White House Communications Director Anita Dunn called the Fox cable network “a wing of the Republican Party.” The president has also sharply criticized news outlets for seeking to gain greater viewership by incorrectly portraying the Washington political scene as combative. At a memorial for Walter Cronkite in 2009, Obama accused 24-hour news outlets of focusing solely on the extreme elements within politics and cheapening public debate.
Reporters have criticized the administration for filing charges against government whistleblowers under the Espionage Act. Invoked six times, the act has drawn criticism for appearing to be a mechanism to hide government misuse of funds.
In 2010, the administration pressed charges against Thomas Drake, a former senior executive at the National Security Agency, for publicly voicing concerns that the government spent an unnecessary amount of money on software when it could have used a cheaper and more effective program. The government later dropped felony charges, allowing Drake to avoid jail time by pleading guilty to a misdemeanor.
Also in 2010, the administration indicted former FBI translator Shamai Leibowitz for leaking classified information to a blogger. At trial, Leibowitz pleaded guilty and was sentenced to 20 months in prison.
The pursuit of domestic whistleblowers has prompted domestic journalists to protest the State Department’s seemingly hypocritical support of bloggers abroad. In 2012, ABC News correspondent Jake Tapper questioned how the White House’s praise for journalists killed covering the Syrian uprising squares “with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court.”
Obama’s attempts to decrease the distance between government and citizen have succeeded in some respects. Part of the White House’s initiative uses its own website to encourage comments, messages and petitions from citizens to establish what the White House calls “the most open and accessible administration in American history.”
But critics say the right to petition has not been encouraged in all instances. In 2009, the president barred lobbyists from speaking to administration officials about the stimulus bill’s allocations. Meant to insulate the project from interest groups, the restrictive measures limited lobbyists from meeting or conversing with legislators and officials about specific projects. Lobbyists still maintained the right to discuss the bill in general. The ban on oral communication sparked criticism and prompted the White House to expand the rule to keep all citizens from speaking with officials concerning a submitted project application.
In 2010, the president stood as one of the harshest critics of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In the controversial case, the Court upheld the First Amendment rights of labor unions and corporations to fund campaign ads. Calling it “a major victory for big oil, Wall Street banks (and) health insurance companies,” Obama disagreed strongly with the loosening of corporate spending restrictions and has since maintained that the changes undermined the average citizen’s efficacy. He has further warned that the political system is now susceptible to foreign influence.
Neil Booher is a senior at Vanderbilt University double-majoring in history and political science.
The Associated Press contributed to this article.
More articles related to First Amendment Analysis | campaign finance, freedom of information, health care, lobbying regulations, Obama, presidential election, religious belief, religious freedom.
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The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.
Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Center at the Newseum Institute.. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is an expert in First Amendment issues and a regular contributor to the First Amendment Center's website. Hudson teaches law and was a scholar at the First Amendment Center.