Tag Archives: James Risen

Obama (finally) does the right thing on press freedom

By Christopher B. Daly

It’s tempting to say “Better late than never” about the Obama administration’s recent flurry of decisions to stop trying to intimidate the news media. But they really should have known better and never embarked in the first place on the most sustained campaign to chill press freedom. Stopping an idiotic, wrong, and unconstitutional policy is not exactly cause for celebration. As Obama himself has described his policy in other arenas, “Don’t do stupid shit.”

In the case against a former CIA officer accused of leaking national security secrets to a reporter, the government decided to go after the reporter. That reporter, James Risen of the New York Times, has been living for years under the threat of being sent to jail unless he would swear under oath who his sources were. Recently, Attorney General Eric Holder announced that Justice Dept prosecutors would not demand in court that Risen name his source(s). Just this week, the defense in that case said the same. So, Risen is off the hook.

What Holder did not say is important too: he did not say he was sorry to James Risen (which he should do). Nor did he say that he would institute a policy under which no reporter who commits no other crime will be threatened with jail just for protecting the identity of confidential sources. This is still a matter of prosecutorial discretion.

Here is the Washington Post version.

In another matter involving the relationship between government and the news media, Holder announced just yesterday that he is putting in place a new policy under which he will forbid the government from secretly tapping journalists’ telephones or hacking their emails.

Here is the AP version. Here is the WaPo. Here are the AG’s new guidelines. (It takes more than two pages of single-spaced gobbledeegook to fall short of what the founders said in 11 words: Congress shall make no law abridging the freedom of the press.”)

These are the right things to do, as far as they go. But they don’t go nearly far enough. The fact is, presidents and attorneys general come and go; prosecutors and NSA agents follow policy or they don’t. What we need to ensure that policies endure past different administrations and have real consequences is a “shield law” passed by Congress that protects journalists nationwide. What we really need is for the Supreme Court to read the First Amendment properly and decide, once and for all, that press freedom extends to reporting.

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SCOTUS: If you make journalists criminals, then only criminals can be journalists.

by Christopher B. Daly 

It’s no surprise, I suppose, that the U.S. Supreme Court has rejected an appeal from a New York Times reporter who has been seeking to avoid being sent to jail for his refusal to testify about his sources. The ruling is a setback for reporter James Risen and for the entire enterprise of journalism as well. The reason: the high court cannot find protection for reporters in the U.S. Constitution.

The First Amendment famously says (in part): “Congress shall make no law . . . abridging the freedom of the press.” As I have written, I believe that the First Amendment goes beyond the right to disseminate news and includes the right to gather news. In some situations, that news-gathering function, also known as reporting, may require reporters to extend a promise of confidentiality to a source. I believe that they have a constitutionally protected right to do so. (Actually, to be precise: I believe that you and I and the rest of the American people have the right to learn what the journalist can learn — that is, we are entitled to information, especially controversial, secret information, that will enable us to make good decisions about powerful institutions.)

Many people disagree. They invoke the ancient legal doctrine which holds that justice demands every person’s testimony — no exceptions (oh, except for the “testimonial privilege” widely granted to clergy, attorneys, spouses and others — plenty of people enjoy the right not to testify with no deleterious effects on society). Superficially, this makes a certain amount of sense. But it overlooks the chilling effect on both sources and reporters if journalists can be dragged into court and ordered, under oath, to break their word and reveal the identities of their confidential sources. The fully predictable result of this doctrine will be that the people will not learn all that they might about difficult, hidden truths.

And a word here about criminal justice. Obviously, the investigation, prosecution, and punishment of crime is an important value in society. I would not want to live in a society that did not suppress crime. But we must bear in mind that law enforcement is not a transcendent value; it is not so important that it can be used to sweep away all other rights and values. It has to be balanced against other important priorities (like being secure in our persons and papers).

I maintain that it is better for a handful of prosecutors to miss out on the testimony of a handful of people than it is to impose blinders on the press. I don’t want to live in that kind of society, either. Prosecutors pursue justice; journalists pursue truth. Those are both important, and sometimes allied, enterprises. But they are not identical, and when they conflict, my default position would be to privilege truth-seeking.

Also, bear in mind: prosecutors have plenty of techniques and powers that journalists don’t have.

–They have the power to subpoena (non-journalist) witnesses and question them under oath.

–If witnesses lie, prosecutors can charge them with perjury.

–Prosecutors have the power to induce suspects to talk by negotiating plea-bargains.

–Prosecutors have the home-team advantage in every courtroom in the country.

–Prosecutors have the power to get a search warrant and spy on suspects.

If prosecutors can’t solve a particular crime with all those powers (which journalists don’t have), then maybe they’re just not trying hard enough.

One implication of today’s Supreme Court ruling: until there is a new array of justices on the high court who properly understand the Constitution, I guess the only remedy is to support legislation (S. 987) to create a federal shield law for reporters. Incidentally, most states already have shield laws that protect journalists in state courts, and we have not suffered any terrible crime wave as a result. All those state AGs and DAs somehow manage to live with laws that uphold press freedom and balance it against the imperatives of law enforcement.

 

 

 

 

 

 

 

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