There have long been complex debates about the propriety of government inquiring into private information in the course of criminal investigations. And the potential for harm to national security further complicates issues that test constitutional principles. However, ever since the Supreme Court ruled in 1971 that the publication of the Pentagon Papers was not actionable, it has been recognized that the press cannot be legally constrained from reporting information it receives from government insiders, even if those sources are improperly disclosing classified data.

The core legal concept here is that the source may be a legitimate target of an investigation for violating laws protecting classified data, but that reporters are simply doing their jobs. If a journalist is not suspected of having broken a law, he cannot be subject to invasive inquiries. Consequently, it may be entirely permissible to subpoena the phone records of a leaker, but not the reporter to whom he leaked.

Given the still incomplete record of what occurred with the Associated Press and Fox News, the Justice Department appears to have overstepped its bounds in examining the phone records of journalists. If it turns out that the journalists acted unlawfully (i.e. solicited classified data in exchange for cash or other favors), that would implicate the reporter as a co-conspirator, but as yet there is no evidence of that. And absent any such exception, the DOJ needs to come clean, acknowledge its mistakes, reaffirm its commitment to the law, and punish those responsible for the gross prosecutorial abuse.

That said, it is utterly ridiculous for Fox News to display such furious indignation over these events considering their past with regard to far worse behavior. The Washington Post, CBS News, and pretty much any other news organization can and should pursue this story aggressively, but Fox really needs to shut the fuck up.

Picture this: Fox News is going nuts about a couple of dozen reporters having their phone records examined by law enforcement officials seeking information about someone suspected of leaking national security secrets. Bear in mind that there was no wiretapping, listening in, or recording of any conversations, just a listing of the calling histories. And even that was not done until after having received permission from a judge. Over that Fox is shouting “SCANDAL” at the top of their lungs.

But there is nary a peep about other Rupert Murdoch-owned entities hacking into the phones, email, and computers of hundreds of private citizens, royals, celebrities, politicians, and even a kidnapped schoolgirl who later turned up dead. That unambiguously criminal activity resulted in dozens of arrests and the shuttering of the highest circulation newspaper in England. Fox not only soft-peddled this historically scandalous story, they openly suppressed it on their own air:

Fox News has been devoting unprecedented airtime to the DOJ story, while engaging in wild and baseless speculation to associate the White House with allegedly improper activities. But their feverish obsession with tarnishing the President and others makes a mockery of journalistic ethics. When Fox devotes equal time to the still ongoing scandal in their own house, then they might be taken seriously when they report on the bad behavior of others.