Bill Knight column for Mon., Tues. or Wed., July 29, 30 or 31
“No,” said the city editor. “Do your job.”
That advice had merit. The community need not care about how difficult it can be to cover stories, whether a college basketball program or a public official’s wrongdoing. However, sometimes the audience might be curious why they aren’t getting the news. That’s not because journalists need sympathy or understanding from viewers, listeners and readers, but because people should know when information valuable to them as citizens isn’t forthcoming.
To function, a democratic republic depends on voters knowing what’s going on in order to influence those who purport to represent them.
The First Amendment reads, “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 Founders didn’t write that (and states didn’t ratify that) so journalism could exist (or prosper); they included the First Amendment so people could stay informed.
Nevertheless, the federal government and the Obama administration are abridging the freedom of the press.
On July 19, the Fourth Circuit Court of Appeals ruled on the case of New York Times’ newsman James Risen and "delivered a blow to investigative journalism in America by ruling that reporters have no First Amendment protection that would safeguard the confidentiality of their sources in the event of a criminal trial," according to the Guardian newspaper.
Pushed by Obama’s overzealous Justice Department, the court in a 2-1 vote decided "there is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings."
That oversimplifies reality, making it sound as if journalists with exclusive evidence to heinous crimes would not otherwise share that with law enforcement. But the ruling is much more about government trying to stop whistleblowers from leaking material that could embarrass officials than compelling reporters to help police in nabbing street criminals.
A key part of journalism’s mission is to cover government, and sometimes that means disclosing facts government, local or national, would like to keep secret.
“This pretty much guts national-security journalism,” wrote Michigan journalist Marcy Wheeler. “The only limit on the government’s authority to compel testimony under this opinion is if the government is harassing the journalist (which might have been proven in this case). There is a strong case to be made that the entire point of this trial is to put James Risen … in jail.”
Indeed, dissenting Judge Roger Gregory said the ruling "severely impinges on the press and the free flow of information in our society.
“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” Gregory wrote. “Whatever the limits of who may claim reporter’s privilege, it is clear that Risen falls into the category of people who should be eligible to invoke the privilege. The majority exalts the interests of the government while unduly trampling those of the press.”
Risen was subpoenaed in 2011, when Attorney General Eric Holder and federal prosecutors decided to try to force the Pulitzer Prize-winning author of the 2006 book “State of War: The Secret History of the CIA and the Bush Administration” – to testify at a criminal trial of ex-CIA officer Jeffrey Sterling about who leaked information about the agency’s effort to sabotage the Iranian nuclear program. Sterling was charged as part of an Obama administration crackdown on officials accused of disclosing restricted information to journalists.
The appellate court’s decision came a week after the Justice Department released its "News Media Policies" report revising “policies regarding investigations that involve members of the news media. Members of the news media will not be subject to prosecution based solely on newsgathering activities,” it said, later admitting that the government WILL take such action "as a last resort" when seeking information that is "essential to a successful investigation or prosecution."
So they won’t until they will.
It’s past time to once more propose a federal shield law (like 49 states already have) to protect from federal prosecutors journalists doing their job.
[PICTURED: Graphic from the nonprofit Western Center for Journalism in University Place, Wash.]