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A Free Press Needs More Than the First Amendment

I’ve recently come from the Native American Journalists Association meeting in New Orleans and, as usual, NAJA brings freedom of the press within Indian Country front and center.

As a judge, I consider the lack of an independent judiciary to be a contributor to the democracy deficit in some tribal governments, a major structural flaw often caused by Indian Reorganization Act constitutions taken off a dusty shelf in the BIA rather than written by and argued over by tribal citizens.

Judges serving at the pleasure of the tribal council make litigating council decisions difficult, but I’ve come to believe that the crying need for a free tribal press is at least as important as an independent judiciary and perhaps more so.

When my Cherokee Nation had its constitutional crisis, Chief Joe Byrd’s disregard for judicial authority was a bad thing, but a worse thing at the time was reporters for The Cherokee Phoenix having their jobs on the line for writing the truth about what was going on.

There’s not much good to say about making such a hash out of self government that an appeal to Great White Father becomes thinkable, but one good thing to come from that crisis was the Independent Press Act of 2000, passed by a unanimous tribal council and signed into law by Chief Chad Smith.

Nasty as Cherokee politics can be, the worst I’ve heard from Chief Smith’s enemies is that he gets too much credit for the law. Nobody claims it’s a bad law. The Cherokee Nation won, among other honors, the Elias Boudinot Free Press Award from NAJA in 2001.

Boudinot is credited with founding The Cherokee Phoenix as the first bilingual newspaper in the Western Hemisphere, publishing in Cherokee and English.

The Osage News won the Boudinot Award in 2014 for reportage that included filing a lawsuit to demand compliance with the tribal open records laws and that resulted in the impeachment of Chief John Red Eagle.

Last year, the Muscogee (Creek) Nation became the third Oklahoma tribe to pass free press legislation, but we learned at the NAJA meeting that some of the reportage that won Mvskoke Media the 2016 Boudinot Award was undertaken before the new law went into effect. Like the Osage News, Mvskoke Media was pursuing the famous dictum of the Watergate scandal source, Deep Throat: “Follow the money!”

The Cherokee, Osage, and Creek news organizations were facing the problem of tribal government demanding to control what it funded. I have always thought that a way to avoid that superficial nonsense would be to write an abstract entity, “the press,” into the tribal constitution as a co-equal branch of government with the stated function of informing the voters.

A common objection to that is that non-Native reporters could also “follow the money.” As long as the money is taking no unlawful detours, who cares?

The Navajo Nation, which often goes its own way on major policy issues, took a different route to a free press in 2003, cutting the Navajo Times free of tribal government. The good news was no more governmental interference but the bad news was selling advertising and subscriptions became a matter of survival. The Times had enough support on and around the reservation to pull that off.

All this agony over freedom of the press is a prime example of why Indian nations are in “a state of tutelage,” right? The colonial governments in the Americas have this problem covered, don’t they?

Not exactly. The Pentagon Papers litigation came out well for a free press, but the issue was nip and tuck at the time. Also, we’ve only scratched the surface when we solve the problem of direct governmental interference by having reporters fired or put in jail. Keeping it all in proportion, it’s fair to add from a world perspective that reporters getting killed also tends to slow down the free flow of information.

Let’s take a look around our own hemisphere.

Glenn Greenwald is the editor of a publication begun to mine the Edward Snowden data dumps, The Intercept. Greenwald recently reported what should have been a political story that turned into a media story involving the impeachment of Brazil’s elected president, Dilma Rousseff.

The political story is that new Brazilian President Michel Temer, making a speech in the U.S., admitted that Rousseff was in fact impeached not over any illegalities, but over her refusal to follow the neoliberal economic agenda of privatizing governmental activities and shredding the social safety net.

The media story is that Brazilian news outlets ignored Temer’s admission, excepting one columnist from the right wing newspaper Estadão. Lúcia Guimarães, according to Greenwald’s reporting, did not exactly cover herself in glory because she only reported the fact of the matter after losing a Twitter war over her groundless accusation that the video of Temer’s admission had been altered.

Still, she told the truth when the truth was in her face.

The general lack of reporting on this video bombshell was one cause of Reporters Without Borders dropping Brazil to 104th in its world press freedom rankings, down from 58th among 180 countries rated in 2010.

That miserable showing is not the worst in the Americas. Brazil is only the third most deadly country for reporters, after Mexico and Honduras, and Brazilian press freedom still ranks above Ecuador (109th), Guatemala (121st), Columbia (134th), Honduras (137th), Venezuela (139th), Mexico (149th), and Cuba (174th).

The best scoring nations in this hemisphere are Costa Rica (6th), Canada (18th), Uruguay (20th), Chile (31st), and Belize (36th). The United States scores a middling 41st---nothing to write home about for a nation so fond of grandstanding on the First Amendment protections for a free press. RWB cuts off “good” at number 16, a standard only Costa Rica meets in this hemisphere.

The Brazilian impeachment brings to mind the demands for impeachment of President Barack Obama. The demands were loud and persistent, lacking only some statement of what the grounds would be for impeachment. The unspoken assumption was that since the crazed attempt to impeach Bill Clinton, impeachment is simply another political tool.

Without a free press, the Clinton impeachment might have succeeded. As it was, those who did not read the special prosecutor’s report were convinced that Clinton has used his position to coerce sex from a subordinate.

More observant voters understood the impeachment to be about perjury, which is a bit more serious than an extracurricular blow job. You just about had to be a lawyer to know that perjury gets less serious when the lie has no bearing on a material aspect of the proceeding where the perjury occurs.

Some considered it a free press triumph when it came out that Speaker Newt Gingrich was having an affair with a congressional aide at the same time he was trail bossing the Clinton impeachment.

Republicans unanimously elected Bob Livingston of Louisiana to replace Gingrich, but Livingston resigned on the day of the impeachment vote in the face of allegations that he had four extramarital affairs in the previous ten years.

Republicans then lined up behind Dennis Hastert of Illinois, who remained Speaker though the impeachment trial and after whom is named the “Hastert Rule,” a policy that keeps the House from getting any work done by requiring that anything brought to the floor must have the support of a majority of Republican members.

Hastert is current serving 15 months in the Club Fed for violating money laundering laws in an effort to cover up hush money to victims of his long career as (in the judge’s words) “a serial child molester.”

All this sexual misconduct is titillating, but following the hormones is seldom as important as following the money. The country just got off on sexual misadventures in the hypocritical pursuit of Bill Clinton, but I suppose both the hormones and the money would have been much harder to follow without the First Amendment.

The First Amendment is a grand document, but it only deals with one aspect of press freedom: direct governmental interference with reporting. Reporters Without Borders calculates world rankings based on pluralism, media independence, media environment and self-censorship, legislative environment, transparency, infrastructure, and abuses.

Freedom of information is always measured in relation to expectations, and the U.S. claims of superiority based on the First Amendment setting high expectations.

Reporters Without Borders recently complained when a reporter was arrested outside a Donald Trump event. Trump also restricts reporters to “press pens” and maintains his own blacklist of media outlets not to be issued press credentials because they reported something he did not like.

Trump deserves to get hammered for the way he tries to manage the media far beyond the common practice of giving interviews to favored reporters who have proven they can pitch softballs.

Compare any of Trump’s media victims to Anabel Hernández of Mexico’s Proceso, who has had to employ bodyguards and had her home and family attacked twice.

Reporters for tribal media often have to risk their jobs to bring home the bacon for the people they serve. You can’t have a functioning democracy when people are not allowed to know what is going on. Tribal governments that threaten cutting off funds to tribal papers or access to reporters need to be called out for it.

Freedom of the press is lacking in much of Indian country, but the colonial governments are in no position to tutor us when reporters in this hemisphere risk not just their jobs but their freedom and in some cases their lives.

Kudos to NAJA for calling out the bad actors and rewarding reporters with the courage to stand up to them. Freedom of information can only make our governments better.

Those tribal nations with free press problems are unlikely to find solutions by looking to the U.S. or Mexico or Brazil. Better to look at the Cherokee, Osage, Muscogee (Creek) and Navajo responses for a baseline and try to do better.

I do not deny freedom of the press is a real problem for Indian country. But I would love it if Reporters Without Borders would include tribal nations in their world rankings and subject us to the same scrutiny by the same standards. I’m not convinced we would fare worse than the colonial governments that claim to be our role models.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.