Column: The Case That Inspired a Newspaper Motto

For the Valley News
Published: 3/3/2017 11:21:44 PM
Modified: 3/4/2017 9:00:48 PM

The Washington Post has just debuted a stark motto: “Democracy Dies in Darkness.” To a former newspaper reporter like me, that’s a stirring sentiment — especially in these times.

It’s too bad, though, that the Post didn’t nail down just where it came from, because that story also reverberates in these times.

After the motto appeared on the paper’s masthead, Washington Post reporter Paul Farhi wrote that the owner, founder Jeffrey Bezos, had used it in public a year ago. Bezos “apparently heard the phrase from legendary investigative reporter Bob Woodward,” Farhi wrote.

Apparently? The boss wouldn’t confirm that for him?

Farhi talked to Woodward, who said he remembered reading the phrase in a ruling on a First Amendment case, but couldn’t recall the judge or the case. Farhi came to this conclusion: “Woodward’s source appears to be Judge Damon J. Keith, of the U.S. Court of Appeals for the 6th Circuit, who ruled in a pre-Watergate era case that the government couldn’t wiretap individuals without a warrant. In his decision, Keith apparently coined a variation on the Post’s motto, writing that ‘Democracy dies in the dark.’ ”

There’s that word again: “apparently.” Never a good word to see in a news story, because it papers over the reporter’s failure to confirm the story.

Judge Keith did issue a landmark evidentiary ruling on a pre-Watergate criminal case involving warrantless wiretapping by the government. But his decision in that 1971 case, United States v. Sinclair, doesn’t contain anything similar to the Post’s motto. So where did the phrase come from? A much later case that Keith heard, it turns out — one with particular relevance to the moment in which the Post has now adapted his words.

After the terrorist attacks on Sept. 11, 2001, U.S. Attorney General John Ashcroft’s Justice Department began deporting Arab and Muslim immigrants via secret court proceedings. The Detroit Free Press, the Detroit News, the American Civil Liberties Union and U.S. Rep. John Conyers all challenged the practice in federal court, saying it was a violation of the First Amendment to close immigration hearings to the press and the public. The case ended up before Keith and his fellow justices at the Sixth Circuit Court of Appeals.

Detroit Free Press v. John Ashcroft was the ruling for which Judge Keith crafted the words that have morphed into the Post’s motto. And the questions he addressed back then are blaring in today’s headlines. Do non-citizens have rights? Is the press the enemy of the American people?

The three-judge appeals panel ruled against the government. The decision, written by Keith, said, “The political branches of our government enjoy near-unrestrained ability to control our borders. … Since the end of the 19th Century, our government has enacted immigration laws banishing, or deporting, non-citizens because of their race and their beliefs. While the Bill of Rights jealously protects citizens from such laws, it has never protected non-citizens facing deportation in the same way. In our democracy, based on checks and balances, neither the Bill of Rights nor the judiciary can second-guess government’s choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty.

“Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them ‘special interest’ cases. The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors (emphasis added). The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ They protected the people against secret government.”

Democracies die behind closed doors. As Woodward recognized when he read it, and the Post is now showing us daily, those are words worth remembering. It’s also worth remembering that judges and reporters open those doors.

Judge Keith, now 94 years old, still sits on the Sixth Circuit bench. Last year, an independent filmmaker produced a documentary called Walk with Me: the Trials of Damon J. Keith, centered on four cases Keith oversaw in the early years of his career — involving discrimination in housing, employment, education and policing. The way Keith’s jurisprudence changed the face of civil rights in America may be “the greatest story you never heard,” says the film’s writer. You can judge for yourself: It’s available online, and there will be a screening 8 p.m. on Saturday, March 11 at the Red River Theatres in Concord as part of the Middlebury New Filmmakers Festival tour.

Dan Billin is a former Valley News reporter. He lives in Lebanon.

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