'This is the stuff of the Sedition Act," said First Amendment lawyer Floyd Abrams. He was referring to independent counsel Kenneth Starr's use of grand jury subpoenas to ferret out leaks to journalists critical of him and his staff.
Sedition - what a quaint word. Thanks to my friend William Safire, who has been researching the subject for a book, I was able to go back 200 years to the Sedition Act of 1798 and learn how the government treated irksome journalists then.
The Michael Isikoff of his day (Mr. Isikoff is the Newsweek reporter who broke the Lewinsky story) was James Callendar, who wrote for the newspaper Aurora. One of Mr. Callendar's prize sources was Vice President Thomas Jefferson. Thanks to friends of Mr. Jefferson, Callendar was able to report that an unsavory associate of Treasury Secretary Alexander Hamilton, James Reynolds, had had late-night meetings at Mr. Hamilton's home, getting inside information to speculate in government securities.
Hamilton indignantly denied the charge. He said the reason for the late-night activity at his home was that he was having an affair with Reynolds's wife. Thus, an adulterer, not a speculator.
OUT of this and other such embarrassing reports came the Sedition Act. It prohibited "false, scandalous, and malicious writings," and any "writings against the government of the United States,"on pain of fines and prison up to two years. That was before the Supreme Court started reviewing laws for constitutionality.
Callendar and 13 others were convicted of sedition. Luckily for them, Jefferson was elected president, and he pardoned them all. The Sedition Act lapsed and was not reenacted.
And a good thing, too, if you will allow a self-serving comment. Imagine what President Nixon would have done with a Sedition Act! As it was, he had to content himself with an enemies list and an FBI investigation of me.
Even without a Sedition Act, there are ways to send a journalist to jail. In 1976, I was subpoenaed to appear before the House Ethics Committee and threatened with jail for contempt of Congress if I did not disclose the source of a report on the CIA, which the House had voted to suppress. In the end, the committee voted 6 to 5 not to send me to jail - a little too close for comfort.
Now a new generation of reporters and their sources face the challenge of an angry independent counsel, looking for blood and able to drag people before the grand jury. Just think what Mr. Starr would do if he had that old Sedition Act.
* Daniel Schorr is senior news analyst for National Public Radio.