By Norman Solomon
The part of the First Amendment that prohibits â€œabridging the freedom â€¦ of the pressâ€ is now up against the wall, as the Obama administration continues to assault the kind of journalism that can expose government secrets.
Recent Fourth Circuit Court of Appeals’ Ruling Compromises Press Freedom, Especially National Security Journalism
Last Friday the administration got what it wanted –Â an ice-cold chilling effect — from the Fourth Circuit Court of Appeals, which ruled on the case of New York Times reporter James Risen. The court â€œdelivered 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,â€ the Guardian reported.
The Executive Branch fought for that ruling — and is now celebrating. â€œWe agree with the decision,â€ said a Justice Department spokesman. â€œWe are examining the next steps in the prosecution of this case.â€ The Risen case, and potentially many others, are now under the ominous shadow of the Appeals Courtâ€™s pronouncement: â€œThere is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify â€¦Â in criminal proceedings.â€
At the Freedom of the Press Foundation, co-founder Trevor TimmÂ callsÂ the court ruling â€œthe most significant reporterâ€™s privilege decision in decadesâ€ and asserts that the court â€œeviscerated that privilege.â€ Heâ€™s not exaggerating. Press freedom is at stake.
Journalists who can be compelled to violate the confidentiality of their sources, or otherwise go to prison, are reduced to doing little more than providing stenographic services to pass along the official story. Thatâ€™s what the White House wants.
The federal Fourth Circuit covers the geographical area where most of the U.S. governmentâ€™s intelligence, surveillance and top-level military agencies — including the NSA and CIA — are headquartered. The ruling â€œpretty much guts national security journalism in the states in which it matters,â€ Marcy WheelerÂ writes.
Justice Department Policy Revisions Regarding Investigative Reporting Fail to Assure Critics
That court decision came seven days after the Justice Department released its â€œNews Media Policiesâ€ report announcing â€œsignificant revisions to the Departmentâ€™s policies regarding investigations that involve members of the news media.â€ The report offered assurances that â€œmembers of the news media will not be subject to prosecution based solely on newsgathering activities.â€ (Hey thanks!) But the document quickly added that the government will take such action â€œas a last resortâ€ when seeking information that is â€œessential to a successful investigation or prosecution.â€
Translation: We wonâ€™t prosecute journalists for doing their jobs unless we really want to.
Over the weekend, some news accounts described Fridayâ€™s court decision as bad timing for Attorney General Eric Holder, who has scrambled in recent weeks to soothe anger at the Justice Departmentâ€™s surveillance of journalists. â€œThe ruling was awkwardly timed for the Obama administration,â€ the New York TimesÂ reported. But the ruling wasnâ€™t just â€œawkwardly timedâ€ — it wasÂ revealing, and it underscored just how hostile the Obama White House has become toward freedom of the press.
News broke in May that the Justice Department hadÂ seized records of callsÂ on more than 20 phone lines used by Associated Press reporters over a two-month period and had also doneÂ intensive surveillanceÂ of a Fox News reporter that included obtaining phone records and reading his emails. Since then, the Obama administration tried to defuse the explosive reaction without actually retreating from its offensive against press freedom.
Justice Department’s Version of a Federal Shield Law Includes a National Security Exception
At a news conference two months ago, when President Obama refused to say a critical word about his Justice Departmentâ€™s targeted surveillance of reporters, he touted plans to reintroduce a bill for a federal shield law so journalists can protect their sources. But Obama didnâ€™t mention that he hasÂ insistedÂ on a â€œnational security exceptionâ€ that would make such a lawÂ approximately worthlessÂ for reporters doing the kind of reporting that has resulted in government surveillance — and has sometimes landed them in federal court.
Obamaâ€™s current notion of a potential shield law would leave his administration fully able to block protection of journalistic sources. In a mid-May article — headlined â€œWhite House Shield Bill Could Actually Make It Easier for the Government to Get Journalistsâ€™ Sourcesâ€ — the Freedom of the Press Foundation shed lightÂ on the duplicity: As a supposed concession to press freedom, the president was calling for reintroduction of a 2009 Senate bill that â€œwould not have helped the Associated Press in this case, and worse, it would actually make it easier for the Justice Department to subpoena journalists covering national security issues.â€
Obama’s Extreme Measures Continue to Target Journalists and Whistleblowers
Whether hyping a scenario for a shield law or citing new Justice Department guidelines for news media policies, the cranked-up spin from the administrationâ€™s PR machinery does not change the fact that Obama is doubling down on a commitment to routine surveillance of everyone, along with extreme measures specifically aimed at journalists — and whistleblowers.
The administrationâ€™s efforts to quash press freedom are in sync with its unrelenting persecution of whistleblowers. The purpose is to further choke off the flow of crucial information to the public, making informed â€œconsent of the governedâ€ impossible while imposing massive surveillance and other violations of the First, Fourth and Fifth Amendments. Behind the assault on civil liberties is maintenance of a warfare state with huge corporate military contracts and endless war. The whole agenda is repugnant and completely unacceptable.Î¦
Norman Solomon is co-founder of RootsAction.org and founding director of the Institute for Public Accuracy. His books include War Made Easy: How Presidents and Pundits Keep Spinning Us to Death.