By Gene Policinski
Inside the First Amendment –
News is swirling these days around a complex mix of national security issues, leaks of classified information, and First Amendment protections for a free press amid the new world of digital journalism. Let’s use some terminology from a heavyweight boxing bout to track this “match” pitting the needs of national security against the public’s “right to know: “
Round One: Score it for the Obama administration, which came out of the corner fighting against leaks early in the first term –by this year, bringing more prosecutions under the Espionage Act than ever before. Just that fact alone alarms those who see whistleblowers and an independent press as the ultimate watchdog on government actions, particularly those done in secret.
Round Two: Government takes this one, on a mixed card. Just as a shield law long-sought by many journalists to protect the reporter-source relationship was nearing a final vote in the U.S. Senate in 2009, a haymaker gets thrown: Wikileaks released hundreds of thousands of memos and battlefield briefs to the public. Officials cried “treason,” while others saw it as a plus for public knowledge – but down goes the proposed “Free Flow of Information Act.”
Round Three: In Spring 2010, U.S. Army Pvt. Bradley Manning is arrested on charges of giving more than 700,000 State Department cables, terrorism detainee assessments, combat logs and videos to WikiLeaks – the largest such leak in U.S. history. Manning will go to trial in three years later, facing more than 130 charges ranging from theft to “aiding the enemy,” which could mean life in prison. Government round, clearly.
Round Four: in May 2013, The Associated Press threw some serious punches when it’s revealed that the Justice Department secretly obtained months of AP phone records for as many as 20 reporters and at multiple AP offices while investigating leaks. AP chief Gary Pruitt called the seizures “unconstitutional” and said already some sources are backing away from his reporters. DOJ takes it on the chin.
Later “rounds” are harder to score.
Round Five: The bout is fully joined in late May and into June with a series of major disclosures by former low-level NSA analyst Edward Snowden of a massive National Security Agency program that provides access to the “meta-data” of millions on American phone calls and e-mail – but, the government said, not to the content of the calls or messages. Snowden begins a global trek to avoid U.S. authorities, eventually leading to Moscow.
Round Six: In punches to the journalistic gut, it’s revealed that as part of an investigation of a 2009 leak, a search warrant request named Fox News’s James Rosen as “an aider and abettor and/or co-conspirator” for receiving the information. A quick series of jabs by free press advocates and media officials lead White House officials to back-pedal. President Obama declares first that he supports the First Amendment, and later decries any attempt to “criminalize” news reporting. Obama also announces White House support for a revived federal shield law, despite its opposition to the near-identical 2009 proposal.
Round Seven: Jabs and roundhouse swings at the government over the AP records seizure and the Rosen affair produce an invitation in mid-June from Attorney General Eric Holder to major news outlets to discuss long-standing rules within the Justice Department governing attempts to get journalists’ files or other records. The meeting is off-the-record, so some journalists will not attend. Still, updated guidelines revising Watergate-era rules are set out in early July, offering more protection to news media.
Round Eight: One for the government. On July 19, the U.S. Fourth Circuit Court of Appeals ruled that New York Times reporter James Risen must give take the stand at the trial of a former CIA agent being prosecuted for leaking of state secrets. The court said “there is no first amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify … in criminal proceedings.”
Round Nine: As July ends, there is a series of developments that is tough to score. Manning is convicted July 30 of violating the Espionage Act, and could be sentenced to as long as 36 years in prison. But he’s acquitted on the charge of aiding the enemy. Still, a flurry of news reports raised the idea that the conviction – combined with continuing zealous efforts elsewhere by the Department of Justice – will “chill” whistleblowers and scare them away from talking with journalists.
Round Ten: In the U.S. House, the NSA data surveillance program survived a surprisingly tight vote, 217-205, on July 24, At the same time, more documents and allegations surface from Snowden, supporting the claim that even low-level NSA analysts can gain access to the content – not just data surrounding – individual phone conversations and e-mails.
And the bell will ring soon for even more action: Manning’s sentencing. More threatened disclosures by Snowden of secret programs. Congressional debate over the new shield law. And a larger, longer debate over national safety vs. individual freedom and privacy.
The fight analogy has its limits, but clearly we’re only in the early rounds of balancing legitimate national security concerns against over-classification and with the need of the public for accurate information on what its government is doing.
First Amendment concerns include not only threats to a free press’ ability to report the news, but also to the potential for a narrowly drawn shield law which may exclude new-media users like bloggers, or which provides for a kind of “licensing” of journalists as a special legal class that later could be withdrawn.
Even with all that’s come to light, we’re just getting though the early sparring in this ongoing Constitutional rumble.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of its First Amendment Center. Email him at firstname.lastname@example.org.