It is also plain that the protection of the rights granted under the constitution is not solely the domain of the courts: the executive and legislative branches have some obligation to use their powers to encourage protected values such as free speech as well. See Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978). This obligation is only made more powerful by the judicial reluctance to review and invalidate executive decision-making: where, as in military matters, the executive is not subject to external constitutional review, it has an added obligation to review and constrain its own actions to ensure that they do not violate the spirit or the letter of constitutional protections. Rana Jazayerli, Note, War and the First Amendment: A Call for Legislation to Protect A Press' Right of Access to Military Operations, 35 COLUM. J. TRANSNAT'L L. 131, 155-58 (1997) (arguing that because the Executive apparently has sole discretion for constitutional review of the national security “exception”, it should take care in exercising it).

An analysis of the effect of these restrictions and the embedded journalism program as a whole on freedom of the press has to begin with weighing the costs and benefits of the program, as Section III of this paper attempts. Even for die-hard supporters of embedded journalism, this analysis is important because it can produce changes in the program that advance the freedom of the press. There are several other points about the program, however, that bear on freedom of the press and need to be discussed.

The restrictions imposed by the military leave open unanswered questions about permissible coverage that place journalists in an unacceptable dilemma. It is unclear from the restrictions whether or not the news organizations which place the embedded journalists would be permitted to report restricted information that they had obtained from another, non-embedded source. The restrictions plainly contemplate that the program is dealing with news organizations as a whole: they state that “embed opportunities will be assigned to media organizations, not to individual reporters.” Public Affairs Guidance on Embedding Media. This raises the question of whether the reporters are the only entities bound by the restrictions issued in the military guidelines. If news organizations as a whole are bound, then the decision to embed even one journalist effectively applies the information restrictions to the coverage of the entire news organization. Even if another, completely independent journalist were to discover information restricted by the guidelines or a local commander from other sources, it would appear highly suspicious if the news organization were to include that information in any of its coverage. It is important to remember in this context that many of the embedded journalists came from traditional media such as newspapers: it was not merely a cable news affair. Mary Wiltenburg, All the News That’s Dangerous to Gather, CHRISTIAN SCIENCE MONITOR, April 9, 2003, at 02. This makes it all the more implausible that news organizations could set up a kind of internal “Chinese Wall” that would justify their use of restricted information from other sources. On television news, reports from embedded journalists are often visual recordings. For a newspaper, they mainly involve either written articles or written reports of information that are to be incorporated into other articles later. A news organization would have great difficulty proving that had obtained the information from another source, and even if it could, this would place the organization in the ethically impermissible situation of having to reveal information about its sources. See Laurence B. Alexander, Looking Out for the Watchdogs: A Legislative Proposal Limiting the Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and Information, 20 Yale L. & Pol'y Rev. 97 (2002). In wartime, this might place the source in a great deal of personal danger and would probably be considered impermissible by most organizations. The only alternatives are to not report the information or to report it and risk being expelled from the embedding program. Joanne Ostrow, Iraq War Coverage More Eye-Catching Than Eye-Opening, DENVER POST, April 27, 2003, at F-07 (noting the expulsion of several embedded reporters for failing to follow guidelines). Given the informal credentialing system discussed above, this is a dramatic risk to take: it could result in the organization being shut out of most information for the duration of the conflict. See Schafer. To ensure that any program of embedded journalism protects the freedom of the press, the military should make some modifications to either clarify the guidelines in the context of outside information, apply them to journalists and not news organizations, or it should scrap them entirely. A failure to deal with this problem forces news organizations to choose between gathering information from official military sources and gathering it from independent investigations, and this development threatens the independence of the press.

Even if the restrictions were to be clarified, the very idea of prior restraints on what a media organization can and cannot publish is unsettling to many. Frederick Schauer, The Speech of Law and the Law of Speech, 49 Ark. L. Rev. 687, 690-91 (1997) (“From John Milton to William Blackstone to Oliver Wendell Holmes to the present, prior restraints have been taken to be the worst of all possible violations of freedom of speech.”). The arbitrary ability of local commanders to exclude information makes this burden even more onerous. While such restrictions may not be judicially actionable violations of the First Amendment under current doctrines, it is plain that they conflict with the principles of free speech in many ways. At the very least, the military should review the restrictions and find ways to minimize their interference with the freedoms constitutionally guaranteed to the press.

V. Conclusion

Embedded journalism has ushered in, for better or worse, a new age of media coverage of conflicts. It is unlikely that the media will ever go back to traditional methods, if only because the desire for a constant stream of up-to-date information necessitates some cooperation with the military. Embedded journalism has satisfied this need, but it has brought with it the potential for a serious breach in the wall that should separate media from government. There may well be no constitutional solution to this problem, at least not one that would remedy abuses in time to correct them. The best remedy may come from within the press itself: the media, so long encouraged to watch for abuses of government, may find the restrictions that accompanied the embedded journalism program to be a perfect opportunity to exercise the role that the Framers intended them to.

Teve Torbes is a prolific author about such subjects as flea control along with his favorite things which are air mattresses. He has also created a valuable air purifier site.

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