Monthly Archives: May 2013

Quote of the week

“To be a Fox journalist is a high honor, not a high crime.”

–Roger Ailes, chief executive of Fox News, in a memo to his staff.

 

Here’s the full text:

Dear colleagues,

The recent news about the FBI’s seizure of the phone and email records of Fox News employees, including James Rosen, calls into question whether the federal government is meeting its constitutional obligation to preserve and protect a free press in the United States. We reject the government’s efforts to criminalize the pursuit of investigative journalism and falsely characterize a Fox News reporter to a Federal judge as a “co-conspirator” in a crime. I know how concerned you are because so many of you have asked me: why should the government make me afraid to use a work phone or email account to gather news or even call a friend or family member? Well, they shouldn’t have done it. The administration’s attempt to intimidate Fox News and its employees will not succeed and their excuses will stand neither the test of law, the test of decency, nor the test of time. We will not allow a climate of press intimidation, unseen since the McCarthy era, to frighten any of us away from the truth.

I am proud of your tireless effort to report the news over the last 17 years. I stand with you, I support you and I thank you for your reporting with courageous optimism. Too many Americans fought and died to protect our unique American right of press freedom. We can’t and we won’t forget that. To be an American journalist is not only a great responsibility, but also a great honor. To be a Fox journalist is a high honor, not a high crime. Even this memo of support will cause some to demonize us and try to find irrelevant things to cause us to waver. We will not waver.

As Fox News employees, we sometimes are forced to stand alone, but even then when we know we are reporting what is true and what is right, we stand proud and fearless. Thank you for your hard work and all your efforts.

Sincerely,

Roger Ailes

 

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The case against Obama on secrecy

By Christopher B. Daly

imgres3It gives me no satisfaction to say that President Obama has been worse than disappointing when it comes to his treatment of journalists (and their sources) or his retreat from transparency (and thus accountability) in government.

It has to be said: The president has engaged in “a long train of abuses . . . pursuing invariably the same Object.”

The case against him is laid out in this open letter from whistleblowers, posted in the Guardian. This is the most comprehensive indictment I have seen to date.

In his lengthy speech yesterday about how he sees the war on terror, Obama threw in a brief passage near the end about the collateral damage that the war on terror is doing to the news media. It strikes me as too little, too late. Here it is:

The Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society. As Commander-in Chief, I believe we must keep information secret that protects our operations and our people in the field. To do so, we must enforce consequences for those who break the law and breach their commitment to protect classified information. But a free press is also essential for our democracy. I am troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.

Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law. That is why I have called on Congress to pass a media shield law to guard against government over-reach. I have raised these issues with the Attorney General, who shares my concern. So he has agreed to review existing Department of Justice guidelines governing investigations that involve reporters, and will convene a group of media organizations to hear their concerns as part of that review. And I have directed the Attorney General to report back to me by July 12th.

We’ll see what Eric Holder comes up with. But based on his record, I don’t expect much. So far, Holder has been part of the problem, not part of the solution.

 

 

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More on Obama’s war on journalism

By Christopher B. Daly

Below is an intelligent discussion of the Obama administration’s over-reaching to investigate “leaks” to journalists. It inolves UChicago law professor Eric Posner and Slate journalist Emily Bazelon.

Here is the original piece on Slate, which contains all the links but which I found nearly unreadable at this length on the Slate site.

As a service to my readers, I have re-formatted it below. I removed all the jumping, blinking ads, and I got rid of the reader-hostile san-serif typeface that Slate uses (in an apparent effort to appear “modern”). Instead, it is formatted in Times New Roman 16.

 

Secrets and Scoops

Emily Bazelon and Eric Posner debate press freedom, national security, and the government’s grab of the AP’s phone records.

By Emily Bazelon and Eric Posner

Posted Friday, May 17, 2013, at 1:52 PM

In the wake of the story this week that the Justice Department scooped up two months’ worth of the phone records of reporters and editors at the Associated Press, University of Chicago law professor and Slate contributor Eric Posner and Slate senior editor Emily Bazelon have been arguing over whether this is an overreach by the Department of Justice and an intrusion on the newsgathering function of the press (Emily), or an entirely justified effort to find and prosecute a scurrilous government leaker who imperiled the country’s counterterrorism operation in Yemen (Eric). Here’s an edited version of their exchange:

Emily: Like a lot of journalists, I am dismayed and indignant about the Justice Department’s commandeering of two months of AP phone records. To me, this is part of a troubling development: The Obama administration has pursued more leak prosecutions—six—more aggressively than any administration in history. For comparison’s sake, as I mentioned earlier this week, from 1917 until 1985, there was one successful federal leak prosecution. Our democracy was the better for the freedom the press has traditionally had to uncover government secrets (see Watergate). In the case of the AP, the particular tactics the government used are worrisome for their breadth—lots of phone lines in different offices over a long period of time—and for the lack of judicial oversight. Instead of serving the AP with a subpoena, which would have alerted the news organization and given it a chance to fight the order in court, DoJ apparently sent the subpoena to the phone companies. The Justice Department decided on its own not to follow its usual policy of giving the press notice of this kind of intrusion, because it apparently decided that giving notice would threaten the integrity of the investigation. It’s hard to see why that would be true of phone records collected after the fact, as New Yorker general counsel Lynn Oberlander points out—and her larger point is that this should be a call for the courts, not prosecutors, to make.

Journalists don’t really have a legal leg to stand on to protect their sources in the federal government, however—especially when any claim can be made that national security is at stake. The 1917 Espionage Act was written to fight sedition and prevent government officials from compromising military security, and has lately become a tool for going after people who leak classified information. My concern is that once a leak investigation is underway, invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government. The Justice Department says “trust us” and “sensitive investigation” and that’s that. Why exactly should we follow along like lemmings?

But that’s not how you see it, I think. To tee you up: Did the government overreach in the AP probe? Or is this the kind of investigative tactic that gets the press and a few civil libertarians up in arms but seems perfectly sensible to everyone else?

Eric: It makes perfect sense to me—I can’t speak for everyone else, whose opinions rarely coincide with mine. The May 2012 AP story that’s at issue disclosed that the CIA thwarted a terrorist plot to plant a bomb on a plane flying to the United States from Yemen. As Orin Kerr explains, anyone who read the story could infer that U.S. or foreign agents had penetrated al-Qaida’s Yemen affiliate. Even if AP delayed publication until after completion of the operation, the information disclosed may have put the lives of agents in danger or disclosed intelligence methods or simply made foreign intelligence agencies yet again doubt the U.S. government’s ability to keep secrets. The story identifies its sources as U.S. government officials, who clearly violated federal secrecy law. The Justice Department acted rightly to investigate these violations. And because it knew that U.S. government officials communicated with AP journalists, it acted rightly to subpoena phone records that might disclose phone numbers of U.S. officials, who could then be questioned.

If the Department of Justice were investigating Wal-Mart, JP Morgan, or Google for violations of antitrust or securities law, the reaction would be a big yawn. Because it is investigating journalists, we are supposed to feel outraged. But why, exactly? I’m not a journalist myself, Emily, so maybe you can explain the unanimous expressions of outrage from the media and its supporters. I can see a worry about whistleblowers being deterred, but no one thinks that this case involves whistleblowers—by all accounts, the operation was a success and not occasion for a cover-up.

Emily: Journalists think we are special when it comes to revealing sources because protecting them gets us stories that the public benefits from knowing. Maybe the AP’s sources for this story weren’t whistleblowers. Since the government won’t tell us what triggered the subpoena, we don’t know. But yes, I do think that blanket orders for records like this one could deter whistleblowers. Consider the case of Thomas Drake, prosecuted for revealing information about waste and mismanagement at the National Security Agency that led to a prize-winningBaltimore Sun series. And consider the enormous number of classified documents and the probability that some of them are kept secret to avoid embarrassment rather than a breach of security. If you were a government employee with access to a secret like that, and you heard about Drake and the AP, wouldn’t you keep quiet? In assessing the threat to national security, it’s also important to note that the AP held back publication for a week—until the day before a government press conference about the foiled bomb plot. But, conceded, that doesn’t mean the leak itself didn’t pose a great risk. Why shouldn’t the government have to make that showing to a judge? That seems like a speed bump, not a red light. And it would address the “trust us” concern. Maybe even reassure whistleblowers, too.

Eric: You’re right to observe that government officials do not always have good incentives. I’d say they have mixed motives: (1) to protect the country and (2) to protect their hides when they fail at (1). But journalists harbor mixed motives as well. They want to disclose bad behavior among government officials, but they also want attention, Pulitzers, hits, readers—and nothing gets attention like stories about secret counterterrorism operations. The New York Times acted disgracefully by exposing the secret government program to trace money transfers among al-Qaida terrorists in a 2006 article written by Eric Lichtblau and James Risen. They did not expose government malfeasance; they exposed an intelligence operation that al-Qaida would henceforth know to evade. See Jack Goldsmith’s devastating evisceration of Lichtblau’s and his editors’ lame, self-serving rationalizations of their decisions to compromise this valuable intelligence program and others like it. I agree that courts can play a useful role in arbitrating disputes between the government and the press. But I am not convinced that they would have played a useful role here. The government had no legal obligation to seek approval from the courts, and even its harshest critics agree that if it had, a judge would have rubber-stamped the government’s request under the prevailing legal standard. So what exactly would have been accomplished? The problem is that judges are human beings like the rest of us; when confronted with national security justifications from government lawyers that they cannot directly test or verify, they have no choice but to defer to them, while the procedure would slow down the investigation. If it was a question of someone going to jail, courts would be less deferential, but the harm you describe—that potential whistleblowers in future potential cases may be deterred from talking to journalists—will have to yield to the government’s reasonable request for information so that it can conduct a criminal investigation.

Emily: OK, we each have our example of excess: For me it’s the case of Thomas Drake, for you it’s the Lichtblau and Risen series. I see runaway prosecutors and you see a runaway press. I disagree that judges need be a rubber stamp. I’m sure you’re right that they approve most subpoena requests, and maybe that’s OK, because the government’s requests pass the smell test. But two examples to the contrary that give me comfort: In 2008, in the prosecution of another accused leaker, former CIA agent Jeffrey Sterling, New York Times reporter James Risen was subpoenaed about his sources for his book on the history of the CIA during the Bush administration. In 2011, Judge Leonie Brinkema ruled that Risen did not have to testify against Sterling. “A criminal trial subpoena is not a free pass for the government to rifle through a reporter’s notebook,” she wrote. There’s an example of an informed judge standing up to the government’s supposedly sacred invocation of national security. Here’s another older one of a judge standing up for the press: In 1973, Judge Charles Richey denied subpoenas that sought the identity of Deep Throat, the Washington Post’s Watergate source. “This court cannot blind itself to the possible chilling effect the enforcement of these subpoenas would have on the flow of information to the press and thus to the public,” he said in March 1973, in response to demands for documents from the Post and the NYT by Nixon’s re-election committee.

Brinkema’s decision is on appeal to the U.S. Court of Appeals for the Fourth Circuit—a year after arguments, that court has yet to hand down a ruling. Needless to say, I’m rooting for Risen. Brinkema said that going after a reporter’s sources should be a last resort, and that the government had other options in this case it hadn’t pursued. The deputy attorney generalclaims that’s not true of the AP probe. But again, why should we trust him, instead of a neutral arbitrator, to make this call?

The White House has tried to soothe the press by promising to reintroduce a federal shield law for journalists. The bill lapsed after the WikiLeaks document dump in 2010. Do you think a statute like this one is a good idea? Would it change anything?

Eric: You mentioned the Sterling case, where Judge Brinkema quashed subpoenas issued by the government to Risen, to force him to testify as to the identity of his source (allegedly Sterling) for a report about a U.S. intelligence operation against Iran. Judge Brinkema ruled against the government because she believed that the Justice Department did not need Risen’s testimony to win its case—which suggests that Risen would have been compelled to testify if the government needed his testimony. The funny thing about this opinion is if you take it literally, the qualified First Amendment privilege that prevails in Brinkema’s court would not actually protect any whistleblower, since it applies only if the government can convict the whistleblower without the reporter’s testimony. I doubt that this is in fact the case, suggesting the opinion is poorly reasoned—for why would the government try to appeal the opinion if it can convict Sterling without Risen’s testimony? So I accept your view that a judge need not be a rubber stamp. But the pertinent question is whether we can trust judges to adjudicate disputes like this competently—in such a way that balances the government’s interest in protecting leaks and the public’s right to know. On the basis of this harebrained opinion, I would say no. You also argued in your Slate piece that the Obama administration has launched a “war on journalism” because of the unprecedented number of leak prosecutions—six. According to this helpful article by Charlie Savage, only three prosecutions had ever taken place before Obama assumed office. Savage goes on to suggest that one reason for the increase in prosecutions is simply that it is easier today for the government to catch leakers by following electronic trails than in the analog past. I’d like to make two additional points. First, compared with the astonishing quantity of revelations in books like Risen’s and Lichtblau’s, the actual number of prosecutions is truly minuscule. A government official thinking about blowing the whistle should know that the risk of detection and prosecution is close to zero, even in Obama’s reign of journalistic terror. You said earlier “invoking national security almost always trumps the argument that the public benefits from knowing about the internal workings of government”—but is there anything about recent counterterrorism operations that the public doesn’t know? When these operations succeed, someone leaks classified information so he can gain credit for himself or his boss. When the operations fail, someone leaks classified information so she can place the blame on a rival.

Second, the government faces enormous constraints when it prosecutes leaks, and these constraints overshadow the puny legal considerations, like the vagueness of the Espionage Act, which you rightly note. A recent book by Gabriel Schoenfeld, which recounts the history of the press’ involvement in the disclosure of classified information, discusses many of these. Governments often refrain from prosecuting because they fear that doing so will draw attention to the disclosure of secrets, the seriousness of which enemies might otherwise overlook. Governments often face a “graymail” threat from leakers, journalists, and lawyers, who hint that additional classified information may be disclosed if a trial is held, or that it must be disclosed so that the trial is fair. Then there is the sheer difficulty of proving all the elements of a criminal case, and confronting a jury who may sympathize with whistleblowers. Finally, the government needs the press on its side, and as we have seen from the last few days, the press is perfectly willing to retaliate against the government for what it regards as unwarranted investigations and prosecutions—by, say, whipping up three unrelated penny ante scandals into a toxic brew suggesting something like Rome under Caligula.

So rather than accept the press’ description of itself as David fighting the government’s Goliath, I see something close to a battle among equals, where the press has done rather well. Has a journalist ever been held criminally liable for his or her complicity in the intentional disclosure of classified information, a plain violation of criminal law? I don’t think so. That says a lot about the true balance of power. In answer to your questions about the proposed shield law: A number of laws have been proposed that would create a reporter’s privilege. The details vary, but the major idea is to protect journalists with a balancing test so that they will not be compelled to disclose sources when the public interest in disclosure “outweighs” the public interest in concealment. So maybe under this standard a court would protect sources who disclose Watergate but not sources who disclose the identities of agents in an undercover counterterrorism operation. There is a vast amount of space between these two extremes; I have no particular confidence that courts would be able to engage in the appropriate balancing for, say, a story that reveals the identities of agents in a counterterrorism operation who might (or might not) have broken some laws. Nor does the Obama administration: The version of the law it supports requires judges to defer to the government when it claims that national security is at issue. Beyond that, I don’t see the necessity of such a law, given the arguments I’ve made about the magnitude of the political constraints on the prosecution of leakers, and on investigations of journalists. Those constraints ensure that the government will investigate leaks, and bring prosecutions, only in extreme cases. As for the Drake case, your Exhibit A for abusive prosecution of a whistleblower, it exploded in the government’s face. “If they had it to over again, I suspect the department likely would not bring the Drake case,” said a former DOJ spokesman.

Emily: Yes, the detonation of the Drake case is the only good thing about it! But that took years. I’m mulling your characterization of the press and the government as near equals. We don’t see ourselves that way, but maybe that’s because the underdog complex serves our interests. It’s also in our DNA to worry about sources drying up and to prize revelation over secret keeping. I still think, though, that the power of prosecution is the all-mighty one. The press helps to keep it in check, and so do judges. I score lots of points for you in this debate, but I’m hanging on to my faith in the importance of both.

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Obama: Wrong on the Constitution, Stupid on the Politics

By Christopher B. Daly 

imgres3By approving or tolerating the abuses of power involved in the AP and Fox News cases, President Obama has positioned himself on the wrong side of the First Amendment. He is moving in the direction of making journalism a criminal activity.

For a former constitutional law professor, that is beyond disappointing.

For a politician who needs the press to govern, that is just stupid.

More evidence comes from the group Reporters Without Borders, an international journalism-advocacy group that supports press freedom in places like Morocco and Bahrain. Now, they feel the need to express concern about the state of press freedom in the United States, where the concept was born. Sheesh.

Also, don’t miss this comment from Ryan Lizza in The New Yorker.

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Poll: Americans back AP

By Christopher B. Daly

OK, that’s not exactly what this new Pew poll shows. But it does indicate that a healthy plurality “get it” when it comes to government spying on journalists.

5-20-13-3

Here’s the take-away:

Criticism of the DOJ is substantially higher among those who are paying attention to the story. By a 55% to 35% margin people who have followed reports about the AP phone records at least fairly closely disapprove of the DOJ’s actions. Attentive Republicans are particularly critical: they disapprove by a 66% to 28% margin.

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Where Obama is dangerously wrong about journalism

imgres3Don’t miss this excellent piece by Glenn Greenwald, which ran recently in The Guardian. In it, Greenwald — a lawyer, journalist, and prize-winning author — carefully builds a case about what the Obama administration is doing. In short, he argues that the DoJ (with Obama’s certain knowledge) is taking steps to make it a crime to do many of the activities that constitute investigative journalism. The focus is the case involving Fox News’ James Rosen, but most of these thoughts apply to many other cases as well.

This is something that all journalists, all political progressives, and all Obama supporters need to grasp. The president is wrong on this, and his people are out of control.

The take-away:

Under US law, it is not illegal to publish classified information. That fact, along with the First Amendment’s guarantee of press freedoms, is what has prevented the US government from ever prosecuting journalists for reporting on what the US government does in secret. This newfound theory of the Obama DOJ – that a journalist can be guilty of crimes for “soliciting” the disclosure of classified information – is a means for circumventing those safeguards and criminalizing the act of investigative journalism itself. These latest revelations show that this is not just a theory but one put into practice, as the Obama DOJ submitted court documents accusing a journalist of committing crimes by doing this.

That same “solicitation” theory, as the New York Times reported back in 2011, is the one the Obama DOJ has been using to justify its ongoing criminal investigation of WikiLeaks and Julian Assange: that because Assange solicited or encouraged Manning to leak classified information, the US government can “charge [Assange] as a conspirator in the leak, not just as a passive recipient of the documents who then published them.”

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A shield law for reporters? Thanks, but no thanks!

By Christopher B. Daly

First, the Obama administration antagonized the news media by seizing the phone records of The AP-logoAssociated Press. Now, in an effort to make up, the president has thrown his support behind a Senate bill that would create a federal “shield law” that would allow journalists to legally protect their confidential sources.

A lot of journalists have embraced the idea. But I believe that journalists should say, “Thanks, but no thanks.”

Tempting as it might be, a federal shield law is a bad idea for journalists. We do not need it, and we may ultimately regret it. The relevant part of the First Amendment to the Constitution says: Congress shall make no law abridging the freedom of the press. That powerful simple phrase “no law” means just that – no law, period. It means Congress simply cannot legislate in this area.

As a near-absolutist about the First Amendment, I think that part is clear and simple. Furthermore, I believe that a proper reading of the First Amendment makes a shield law superfluous. We almost got such a reading in 1972, in the Supreme Court case known as Branzburg v. Hayes. In that case, the nation’s highest court said that when prosecutors haul reporters in front of federal grand juries and demand to know the names of their sources, the reporters must reveal their sources or face going to jail for contempt of court. In other words, reporters do not enjoy a legal “privilege” against having to testimony such as those enjoyed by doctors, lawyers, or clergy.

The ruling in Branzburg, while wrong, was nearly right. It was a 5-4 ruling, and one of the majority justices was clearly ambivalent about the issue. Justice Lewis F. Powell, as the New York Times reported in 2007, wrote some handwritten notes while the case was being decided. Powell (no friend of the news media) went right up to the line of agreeing with the minority instead of the majority. He wrote:

I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. . . . My vote turned on my conclusion . . . that we should not establish a constitutional privilege.

Those notes are fairly opaque, but they do suggest that reporters very nearly got the recognition they deserve. [Brief digression: Powell's notes were written on a court form captioned U.S. vs. Caldwell. That's not a mistake. The Branzburg case was combined with two others in 1972, including a federal subpoena ordering NYTimes reporter Earl Caldwell to testify before a federal grand jury and name his confidential sources among the Black Panthers. For more, see chap XX of my book, Covering America.] The reasoning for granting reporters a “testimonial privilege” is pretty straightforward. Through the First Amendment, the Constitution gives the practice of journalism a 1007LIPTAK.1100.1065special status that recognizes the vital role that a free and independent press plays in the ability of the American people to govern themselves. If the people are to make informed votes and policy choices, they need good sources of information — especially about the performance of the government itself. But like many powerful institutions (corporations, the clergy, and others), government officials like to control the flow of news and information. So, they regularly try to intimidate and chill the practices of journalism.

The practice of journalism includes both a news-gathering function and a news-disseminating function. Neither one is of much use without the other. That is, if journalists are free to disseminate news but not to gather it, they will have nothing of value to share with the people. Conversely, if they are free to gather news but not to disseminate it, the people will again be thwarted in their ability to learn the things they need to know to govern themselves. Thus, journalists must be free to gather news (by reporting) and to disseminate news (by printing, broadcasting or posting).

In the normal course of news-gathering, journalists seek information in all quarters. They observe some events first-hand, they examine documents, and they interview people. Often, the most sensitive and valuable kinds of news come to journalists from sources who need to remain anonymous to avoid retaliation such as being fired or prosecuted. In those cases, journalists promise the source confidentiality. They say something along these lines: Please give me the important information you have, and in return, I will promise to keep your identity a secret.

These kinds of promises are not routine, but they are fairly commonplace — especially in certain kinds of fields, such as reporting about the military, our spy agencies, or any sort of abuse of power. The source wants to blow the whistle on a secret that the source considers illegal, immoral, or just plain wrong. Often, the reporter is indifferent on that question, but the reporter can see that the material should reach the general public, so that the American people can decide the issue.

Should we, for example, use drones to kill American citizens abroad? That’s an important question, but we could not even debate it without “leaks” from confidential sources. Without a constitutional privilege, reporters make such promises to their sources at their peril. It is perfectly predictable that those in power (from either party) will reflexively attempt to control the flow of information to the people. One attractive mechanism for doing that is to force journalists to name their confidential sources and then to go after the sources and punish them. If I were a tyrant seeking to use the limited powers of government to create unlimited personal power, that is one of the ways I would go about it.

Gilbert_Stuart_Thomas_Jeffersen(5)That is exactly what Thomas Jefferson and his supporters among the Founders foresaw and sought to prevent. One of the remedies they came up with was an absolute guarantee of press freedom. That’s why I believe we journalists do not need to ask Congress to bestow such protections on the practice of journalism. Indeed, we should be wary of inviting Congress to legislate about the press at all, because once legislators start writing laws, it is exceedingly difficult to get them to stop. Today, they may say they are proposing to do us a favor by granting us a shield. Tomorrow, having established the precedent, they may decide to improve that law by “clarifying” just who is a journalist. Before long, Congress might decide to license journalists or protect confidential sources in the Executive branch but deny such protection to their own staffers. There would be no end to it.

Instead, I believe that journalists should stand firm and insist on the rights we already have under the First Amendment. That was essentially the view expressed by one of the dissenters in the Branzburg case. In an eloquent and penetrating opinion, Justice William O. Douglas argued that the First Amendment exists for the ultimate benefit of the American people. When reporters do their jobs, Douglas wrote, “the press is often engaged in projects that bring anxiety and even fear to the bureaucracies, departments, or officials of government.” But if journalists can be intimidated into giving up their confidential sources, he warned, then “the reporter’s main function in American society will be to pass on to the public the press releases which the various departments of government issue.”

[Full disclosure: I worked for The Associated Press for a total of 10 years, between 1976 and 1989, in the NYC world headquarters and in the Boston bureau.]

 

 

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