Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment to the US Constitution, ratified 12/15/1791.
The Press is the only occupation protected in the US Constitution. The freedom to gather information and publish it to the people is that important to the operation of a Republic. But this country has seen outrageous efforts to control, prosecute, even assassinate journalists. And it’s getting a lot worse very quickly.
In a major ruling on press freedoms, a divided federal appeals court on Friday ruled that James Risen, an author and a reporter for The New York Times, must testify in the criminal trial of a former Central Intelligence Agency official charged with providing him with classified information.
In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.
“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz in Friday’s ruling.
Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court.
In my youth, reporters regularly refused to even name their sources, much less testify against them. This is a new demand from government. But not inconsistent with other things the government is doing:
The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.
The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.
In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.
The surveillance powers that the government has appropriated since 9/11 have been extended to spying on the Press. This has become known to us through the actions of whistleblowers, who are themselves under attack. The surveillance of the Press is so bad that there was a letter sent to Mr. Eric Holder:
On Friday, Free Press and more than 60 civil liberties, digital rights, press freedom and public interest groups sent a letter to Attorney General Eric Holder demanding a full, transparent account of the Justice Department’s targeting of journalists and whistleblowers.
Representing millions of Americans, the groups include the American Civil Liberties Union, the American Library Association, the Communications Workers of America, the Electronic Frontier Foundation, the Society of Professional Journalists, the Sunlight Foundation and the Writers Guild of America East. (The full list of signers can be found below.) In addition, Free Press delivered more than 16,000 petition signatures urging the Justice Department to protect press freedom.
Read the full text of the letter and the list of signers below:
May 24, 2013
Attorney General Eric Holder
Deputy Attorney General James M. Cole
U.S. Department of Justice
950 Pennsylvania Ave.
Washington, D.C. 20530
More than 50 journalism and press organizations recently wrote you to voice grave concerns about the Justice Department’s subpoena of telephone records belonging to Associated Press reporters and editors. We write today as a coalition of civil rights, public interest, transparency and media reform groups to express similar concerns.
Your actions have threatened press freedom — and endangered the health of our democracy. As groups working to strengthen democratic institutions and foster more open government, we are deeply concerned that your agency’s actions will hinder efforts to make government more transparent and accountable to the public.
Following years of aggressive leak investigations, the Justice Department’s overreaching subpoena of AP phone records sets a dangerous precedent. Furthermore, it appears to violate the Department’s own rules and guidelines. The impact of the Justice Department’s actions is already being felt. AP CEO Gary Pruitt reports that sources are now less willing to talk to reporters. And journalists from newsrooms large and small have noted the chilling effects on their coverage of the government.
The latest news suggests that the subpoenas were even broader than initially reported. In addition, details are emerging about a case in which the Justice Department also seized phone records from reporters at Fox News and labeled one of its journalists a “co-conspirator” for simply doing his job.
These troubling developments raise real questions about the scope of the Department’s surveillance of journalists. At a recent congressional hearing, Mr. Holder, you couldn’t recall how many times the Justice Department has subpoenaed journalists’ records. We need to know the full extent of your Department’s crackdown against journalists.
In the digital age, reporting is no longer confined to America’s traditional newsrooms. As such, threats to press freedom threaten anyone who seeks to share information about official actions using a cellphone, social media service or website. The Obama administration promised a new era of openness and transparency. Your actions, which expand secrecy and intimidate those trying to shed more light on our government, run counter to that promise.
We demand a full accounting of the Justice Department’s targeting of journalists and whistleblowers. We need this information so that we can advocate for appropriate action to protect everyone’s constitutional rights and push for stronger legal standards to protect all types of information gathering and sharing.
The Justice Department must explain its overreach in this matter. Furthermore, we call on the Department to stop violating its existing rules and cease targeting of individuals and organizations reporting on government activity.
What has been the response of Congress to this obvious disregard of the Constitution?
- Senate Bill S.987, Free Flow of Information Act of 2013. Currently stalled in the Senate Committee on the Judiciary, where it is opposed by Diane Feinstein of California.
- House Resolution HR1962, Free Flow of Information Act of 2013. Also Referred to Committee, pending what the Senate Judiciary Committee does with theirs.
The bill defines a journalist as a person who has a “primary intent to investigate events and procure material” in order to inform the public by regularly gathering information through interviews and observations. The person also must intend to report on the news at the start of obtaining any protected information and must plan to publish that news.
That definition would include people like me, for instance.
And Ms. Feinstein has offered an amendment to S.987 that would seem aimed at excluding bloggers, self publishers, in fact anyone not working for Corporately owned Main Stream Media. This is what Electronic Frontier Foundation said about her amendment:
Feinstein’s amendment effectively advances a traditional vision of journalism through the three definitions of journalist that it provides, each of which requires that a person be affiliated with a journalistic “entity” or institution (including news websites and other digital news services, and other periodicals distributed digitally).
Specifically, the amendment requires that a journalist meet one of the following definitions:
- working as a “salaried employee, independent contractor, or agent of an entity that disseminates news or information;”
- either (a) meeting the prior definition “for any continuous three-month period within the two years prior to the relevant date” or (b) having “substantially contributed, as an author, editor, photographer, or producer, to a significantnumber of articles, stories, programs, or publications by an entity . . . within two years prior to the relevant date;” or
- working as a student journalist “participating in a journalistic publication at an institution of higher education.” (emphases added)1
There are problems with each of these three definitions. First, as we pointed out in our critique of the House’s bill, requiring that an individual is “salaried” is problematic because many people do journalism but do not do it as their primary source of income. Further, it is entirely unclear who or what an “agent” or “entity” is.
Second, for an individual to fall under the second, seemingly looser criteria, that individual must have distributed the news “by means of an entity.” (emphasis added)2 While this definition may cover freelancers, it is again unclear what it means to have “substantially contributed” to a “significant” amount of work of an “entity.” Indeed, for both the first and second definitions, essential terms are not defined—vagueness that, as we’ll see later, ultimately hurts independent bloggers and citizen journalists.
While the amendment’s inclusion of student journalists is laudable, it does nothing for those students who do not work for a “journalistic publication” at their college or university—or for those students the moment they graduate.
Still Requiring that Journalists “Regularly” Engage in Journalism
Additionally, Sen. Feinstein’s amendment retains the original Senate shield bill’s problematic requirement that individuals “regularly” do journalism to count as a journalist. Specifically, the amendment requires either:
- that individuals “engage in . . . the regular gathering, preparation, collection, photographing, recording, writing, editing, reporting or publishing on” matters of public interest; or
- that individuals “regularly conducted interviews, reviewed documents, captured images of events, or directly observed events.” (emphases added)3
As in the original Senate bill, the amendment fails to define what “regularly” means, vagueness that cuts against non-institutional journalists.
The effect of Ms. Feinstein’s amendment is to muddy the waters, eliminating free lancers, bloggers and others who do not work for the Corporate Media. She has expressly said she does not want Wikileaks employees to be covered.
Feinstein suggested that the definition comprise only journalists who make salaries, saying it should be applied just to “real reporters.” The sponsor of the bill, Sen. Charles Schumer, D-N.Y., was against that idea, since there are bloggers and others in the Internet age who don’t necessarily receive salaries.
“The world has changed. We’re very careful in this bill to distinguish journalists from those who shouldn’t be protected, WikiLeaks and all those, and we’ve ensured that,” Schumer said. “But there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.”
What happens to people who don’t rate being considered a “journalist” by the law–like bloggers? Take the case of Crystal Cox, for example.
She considered herself to be a journalist and should therefore be entitled to protection under media shield laws that allow journalists not to identify their sources.
But Oregon’s shield law doesn’t explicitly include bloggers in its list.
The judge’s opinion is fascinating because it suggests there is one law for journalists and another for citizens. He said:
“Although [the] defendant is a self-proclaimed ‘investigative blogger’ and defines herself as ‘media,’ the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law.”
That sounds like it’s going to require a supreme court hearing at some stage. Cox, who runs several sites, including one called obsidianfinancesucks.com, plans to appeal, rightly saying: “This should matter to everyone who writes on the internet.”
Though Obsidian sued over several postings, the judge found against Cox on only one item, ruling that it was defamatory precisely because it was more factual in tone than her other posts.
And what of those who write for Non-profits? Those NGOs [Non Government Organizations] that keep an eye on what government is doing, and may or may not have the money to pay their staffs?
Feinstein is not the only member of Congress seeking to limit the definition of journalists. Last week, U.S. Sen. Dick Durbin, D-Ill., sent letters to a number of organizations – including the Franklin Center for Government and Public Integrity, which runs Watchdog.org – seeking information about the legitimacy of nonprofit investigative reporters.
A spokesman for Durbin later told Watchdog.org the senator was not targeting any specific individual or group.
Just be aware that this pair of bills, even if they do manage to become Law, will not guarantee the safety of those gathering the news. William Cooper, Andrew Breitbart and Michael Hastings come to mind. As does Barrett Brown.