Category: First Amendment

What happened at The Guardian could happen here

Chief_Justice_Charles_Evans_Hughes
Charles Evans Hughes

This commentary was first published at The Huffington Post.

As you have no doubt already heard, Alan Rusbridger, editor of The Guardian, wrote on Monday that British security agents recently visited the newspaper’s headquarters and insisted that hard drives containing leaked documents from Edward Snowden be smashed and destroyed in their presence. The incident, Rusbridger said, took place after a “very senior government official” demanded that the materials either be returned or disposed of.

Rusbridger’s report followed the nearly nine-hour detention of Glenn Greenwald’s partner, David Miranda, at London’s Heathrow Airport. Greenwald has written the bulk of The Guardian’s articles about the Snowden documents, and Miranda had been visiting filmmaker Laura Poitras, who has worked extensively with Snowden and Greenwald, in Berlin.

We are already being told that such thuggery couldn’t happen in the United States because of our constitutional protections for freedom of the press. For instance, Ryan Chittum of the Columbia Journalism Review writes, “Prior restraint is the nuclear option in government relations with the press and unfortunately, the British don’t have a First Amendment.”

But in fact, there is nothing to stop the U.S. government from censoring the media with regard to revelations such as those contained in the Snowden files — nothing, that is, except longstanding tradition. And respect for that tradition is melting away, as I argued recently in this space.

The case for censorship, ironically, was made in a U.S. Supreme Court decision that severely limited the circumstances under which the government could censor. The decision, Near v. Minnesota (1931), was a great victory for the press, as the ruling held that Jay Near could not be prohibited from resuming publication of his scandal sheet, which had been shut down by state authorities (of course, he could be sued for libel after the fact).

What’s relevant here is how Chief Justice Charles Evans Hughes described the limited circumstances under which the government could engage in prior restraint:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.

The text I’ve bolded means that the government may, in fact, engage in censorship if by so doing it would prevent a breach of national security so grave that it could be likened to the examples cited by Hughes. That’s what the Nixon administration relied on in seeking to stop The New York Times and The Washington Post from publishing the Pentagon Papers in 1971.

The Supreme Court, in allowing publication of the Pentagon Papers to resume (New York Times Co. v. United States), wrestled extensively with Near v. Minnesota, and ultimately decided that revealing the government’s secret history of the Vietnam War did not amount to the sort of immediate, serious breach of national security that Hughes envisioned.

But who knows what the court would say if the Obama administration took similar action against The Washington Post, which has published several important reports based on the Snowden documents — including last week’s Barton Gellman bombshell that the National Security Agency had violated privacy protections thousands of times?

Unlike the Pentagon Papers, the Snowden documents pertain to ongoing operations, which cuts in favor of censorship. Cutting against it, of course, is that there’s a strong public-interest case to be made in favor of publication, given the long-overdue national debate that Snowden’s revelations have ignited.

The bottom line, though, is that there is no constitutional ban that would prevent the White House from seeking to stop publication of the Snowden documents — even if U.S. officials are unlike to engage in the sort of theatrics that reportedly took place in The Guardian’s basement.

(Disclosure: I wrote a weekly online column for The Guardian from 2007 to 2011.)

A chilling act of intimidation and harassment

Glenn Greenwald
Glenn Greenwald

This is pretty shocking. On Sunday, David Miranda, the partner of lawyer/activist/journalist Glenn Greenwald, was detained at Heathrow Airport in London for nearly nine hours and questioned under Britain’s anti-terrorism laws. His computer and other electronics gear were confiscated. Greenwald, who writes for The Guardian, describes what happened here, writing:

This is obviously a rather profound escalation of their attacks on the news-gathering process and journalism. It’s bad enough to prosecute and imprison sources. It’s worse still to imprison journalists who report the truth. But to start detaining the family members and loved ones of journalists is simply despotic.

Greenwald, along with filmmaker Laura Poitras, has been the principal media conduit for Edward Snowden’s revelations about the National Security Agency’s mass surveillance programs. Miranda had been visiting Poitras in Berlin and was on his way home to Rio de Janeiro. (If you haven’t read it yet, here is Peter Maass’ New York Times Magazine story on how Poitras, Snowden and Greenwald came together.)

What were the British security agents up to? Who knows? Maybe they genuinely believed Miranda might be carrying data they wanted to seize. Maybe they were trying to send a message to Greenwald and any other journalists about the consequences of working with a leaker such as Snowden.

Regardless of what you think of Snowden’s actions, there is an enormous difference between leaking and journalism. A generation ago, Daniel Ellsberg was put on trial for providing the Pentagon Papers to The New York Times and The Washington Post; the Times and the Post weren’t prosecuted for publishing them.

The British enjoy fewer press rights than we do in the United States. But Britain is our closest ally, and the U.S. and British security services may be presumed to be working together on the Snowden matter.

The danger is that the U.S. is moving ever closer to criminalizing certain types of high-stakes, leak-based journalism. As I argued several months ago, there is nothing to stop the government from prosecuting journalists for publishing such information other than custom and the fear of a public backlash.

And consider what Snowden has accomplished. In just a few months, public awareness of and debate over government surveillance that came into place after the terrorist attacks of 9/11 have finally reached critical mass. New York University journalism professor Jay Rosen calls it “The Snowden Effect”:

Direct and indirect gains in public knowledge from the cascade of events and further reporting that followed Edward Snowden’s leaks of classified information about the surveillance state in the U.S.

Given President Obama’s oft-proven contempt for the role of a free press in a democratic society, we may be moving closer to the time that such constraints melt away.

Update: My outrage has not diminished, but my understanding of what happened has shifted. As this New York Times story makes clear, Miranda’s trip to Berlin was paid for by The Guardian. It appears that he was facilitating Greenwald’s and Poitras’ journalism, even if he’s not a journalist himself. So this was not harassment of a journalist’s family member. It was harassment of a journalist, or at least of someone engaged in journalistic activities.

Photo (cc) via Wikimedia Commons and published under a Creative Commons license. Some rights reserved.

Branzburg v. Hayes v. The New York Times

You may not like a federal appeals court’s decision that New York Times reporter James Risen must testify in a CIA leak case. I don’t. But it’s Branzburg v. Hayes, straight up. It’s unimaginable that this would have gone the other way.

And keep in mind that even if we had a federal shield law, there would almost certainly be a national-security exception wide enough to drive a truckload of subpoenas through.

The 16th annual New England Muzzle Awards

Previously published by WGBHNews.org, the Providence Phoenix and the Portland Phoenix.

For anyone who’s been paying attention, President Barack Obama’s disappointing record on free speech, civil liberties, and governmental transparency is old news.

This year, though, is special. Obama’s longstanding lack of respect for the role of a free press in a democratic society reached new depths when it was revealed that his Justice Department had snooped on the Associated Press and Fox News’ James Rosen in trying to ferret out leakers.

Then came the überleaker — Edward Snowden, who provided The Guardian and The Washington Post with documents showing that the National Security Agency was monitoring our phone traffic, our emails, and other communications on a scale more massive than previously imagined.

“I welcome this debate and I think it’s healthy for our democracy,” Obama said after the NSA revelations. Yet his administration has already begun the process of bringing criminal charges against Snowden that could put him behind bars for decades.

It is against that chilling backdrop that Harvey Silverglate and I present the 16th Annual Muzzle Awards — a Fourth of July round-up of outrages against free speech and personal liberties in New England during the past year.

Launched in 1998, the Muzzles’ home was the late, great Boston Phoenix, which ceased publication in March. This year we are pleased to bring the Muzzles to WGBH.org, and to continue publishing them for readers of The Providence Phoenix and The Portland Phoenix.

The envelopes, please.

US Attorney Carmen Ortiz: Prosecuting — and persecuting — a fragile Internet visionary

 Last January, Aaron Swartz, a 26-year-old computer prodigy and an activist for open information, hanged himself in his New York City apartment. Swartz suffered from depression and was reportedly despondent over a criminal case that Carmen Ortiz had brought against him for downloading millions of academic articles at MIT without authorization.

Swartz, who co-founded Reddit and helped develop the RSS standard, had done nothing with the articles. JSTOR, the company whose servers he had targeted, declined to press charges. But Ortiz pursued him zealously, putting out a public statement threatening him with 35 years in prison. After his death, she let it be known that he faced “only” six months behind bars if he’d pled guilty.

Ortiz may have decided to make an example of Swartz because of his outspokenness about oppressive copyright enforcement and related issues, which his MIT stunt was meant to illustrate. It wouldn’t be the first time she had demonstrated her contempt for free speech. Last year Ortiz received a Muzzle for her successful prosecution of Tarek Mehanna, a vile propagandist for Al Qaeda whose activities should nevertheless have been protected by the First Amendment.

Yet even after his death Swartz succeeded in advancing the cause of openness. In May, The New Yorker unveiled Strongbox, software that would allow whistleblowers to deposit leaked documents without being traced. Bradley Manning might never have gotten caught if it had been available to him, nor Edward Snowden if he’d chosen to use it.

The developer was Aaron Swartz.

Boston Police Commissioner Ed Davis: Strong in a crisis, but he also spied on antiwar and Occupy left

Ed Davis and other law-enforcement officials have been justly praised for their handling of the Boston Marathon bombing and its aftermath. Though the voluntary “shelter in place” order may have been excessive, a chaotic, frightening chain of events was handled with competence and courage.

The problem is that, in non-emergency situations, the authorities have a habit of demonstrating a grotesquely misplaced sense of priorities. Such was the case last October, when the ACLU of Massachusetts and the state chapter of the National Lawyers Guild unearthed documents showing that the Boston Police Department had been spying on antiwar and Occupy protesters. Among the BPD’s targets: the late Howard Zinn, an elderly Boston University professor and World War II hero. According to a report by Jamaica Plain Gazette editor John Ruch, also targeted was a 2007 antiwar rally featuring activist Cindy Sheehan, then-city councilor Felix Arroyo Sr., and Carlos Arrendondo, who memorably came to the aid of a badly injured spectator, Jeff Bauman, at the marathon bombing.

The police shared that information with the Boston Regional Intelligence Center (BRIC), the so-called fusion center comprising federal and state authorities that was supposed to be tracking terrorist threats — yet apparently never received information provided by Russian intelligence about Tamerlan Tsarnaev. Michael Isikoff of NBC News (here) and Chris Faraone, writing for DigBoston (here), offer worthwhile analysis.

Let’s hope that Davis, who also won a Muzzle in 2010, now realizes he was looking in the wrong places all along — and violating the civil liberties of patriotic Americans.

Max Kennedy: Still stonewalling after all these years on RFK’s official papers

It was bad enough that the Kennedy family had refused to release what were described as the private papers of the late Robert Kennedy. But then, last August, Boston Globe reporter Bryan Bender revealed that many of the papers were actually official documents from RFK’s time as attorney general, including some that may have pertained to assassination attempts against Cuban president Fidel Castro.

Yet the papers have still not been released. And thus RFK’s son Max Kennedy, who has acted as the family’s spokesman, earns his second Muzzle for stonewalling on the RFK papers (the first came in 2011).

According to an index obtained by Bender, the 62 boxes of files may contain crucial insights into such matters as the Kennedy administration’s anti-Castro activities, the Cuban missile crisis, and the Vietnam War. Max Kennedy said the family hoped to release all the papers. But one of the hold-ups, according to the Globe, was the family’s desire to get a tax deduction for the papers before turning them over to the public domain.

As a Globe editorial put it, the Kennedy family “never should have been granted control over official documents in the first place. And they certainly shouldn’t feel entitled to a tax deduction for them.”

It’s time to see what’s in those files.

Governor Paul LePage: Maine’s pro-gun governor tramples on the public’s right to know

Editors at the Bangor Daily News must have known their request for public documents about concealed-gun permits last February would be controversial. After all, The Journal News of White Plains, NY, had already set off a firestorm by publishing an interactive map of gun owners on its website.

But the reaction to the BDN was so intense that it called into question the very nature of “public” records. State legislators, especially Republicans, denounced the newspaper. A “Boycott Bangor Daily News Dont [sic] Tread on Us” page popped up on Facebook.

And our Muzzle winner, Governor Paul LePage, demagogued the issue, posing for a photo in which he’s seen holding up his own concealed-gun permit. He also called on the state legislature to the remove the data from the public realm as quickly as possible. (The legislation was passed and signed in April, according to the New England First Amendment Coalition.)

“If newspapers would like to know who has concealed weapons permits, then they should know the governor has his,” LePage was quoted as saying. “I have serious concerns that BDN’s request will incite fear among gun owners and nongun owners alike regarding their safety.”

It was all too much for the newspaper, which ended up withdrawing its request — even though, in an “Editor’s Note,” the paper said it “never would have published personally identifying information of any permit holder.”

This is LePage’s third Muzzle, with his previous awards coming in 2011 and 2012. His earlier antics leaned toward the buffoonish. This time, he acted as a thug, leading an unruly mob to trample on the public’s right to know.

Former New Hampshire House Speaker William O’Brien: Playing unfavorites with the press

 William O’Brien is not one to brook much in the way of back talk. When a protest broke out in the House gallery during a budget hearing in the spring of 2011, he ordered state police to kick everyone out.

A year later, a fellow Republican legislator became so upset with what he saw as O’Brien’s attempts to silence him that he directed a toxic remark at the Speaker: “Seig Heil.” The legislator was ejected from the chamber and forced to apologize.

It was the Hitler reference that led to O’Brien’s Muzzle. Because Mike Marland, a cartoonist for the Concord Monitor, followed up by depicting O’Brien with a Hitler-like mustache, accompanied by the caption “If the mustache fits …”

O’Brien got his revenge. Last July, he scheduled a news conference to be held in his Statehouse office — and banned two Monitor journalists who tried to enter. An O’Brien spokeswoman explained: “When the Concord Monitor proves they have chosen to become a responsible media outlet, we’ll be happy to invite them to future media events.” (Tony Schinella of Concord Patch shot video of the journalists being held at bay, and of O’Brien responding noncommittally when asked about it.)

Trouble is, though public officials are under no obligation to give journalists special treatment by (for instance) granting interviews, under the First Amendment they must give them equal treatment when holding official events such as a news conference on public property.

O’Brien, no longer Speaker after voters returned Democrats to the majority in the last election, is now running for Congress.

Rhode Island Public Schools: ACLU filtering study reveals widespread Internet censorship

Over the past two decades, the Internet has become a crucial tool in public education, opening schoolchildren to the broader world. Yet concerns about sex, violence, and other inappropriate content has led many school districts to impose draconian restrictions limiting kids’ access to even the most innocuous material.

The ACLU of Rhode Island set out to document online censorship in the schools — and what it found should chill all of us. It turns out that filtering software used in the Rhode Island Public Schools has blocked students from accessing websites such as PBS Kids, National Stop Bullying Day, a video clip of The Nutcracker, and information about global warming. Also blocked were educational resources for gay and lesbian teens.

There is no reason to believe that Internet censorship is worse in Rhode Island than it is in other states. Under the federal Children’s Internet Protection Act, all schools and libraries that receive federal funding must filter “obscene” content, child pornography, and material that’s considered “harmful to minors” — the last being a dangerously fuzzy standard. The ACLU study, by policy associate Hillary Davis, documents problems in Rhode Island but includes findings and recommendations that should be applied nationally.

“In trying to prevent students from visiting ‘inappropriate’ websites, school officials have instead taken advantage of technology to implement an unjustifiable scheme of censorship,” according to Davis’s report. “This must change, for it is only through the free exchange of ideas that students can truly experience a full education.”

Plainridge Racecourse: A citizen journalist fights off a lawsuit aimed at silencing him

Last September the owners of the Plainridge Racecourse in Plainville, MA, SLAPP’d Thomas “T.J.” Keen hard. In the end, he slapped them back harder.

Keen, a Plainville resident and gambling opponent, set up a website called No Plainville Racino to fight a proposed slots license at the track. As Boston Globe columnist Yvonne Abraham described it, Keen’s troubles began after someone broke into his home and he gave a webcam image to the Plainville Police. The picture made its way onto a related Facebook page that another gambling opponent had started. An anonymous commenter wrote, “I wonder if they checked over at the racetrack, lol.”

Ourway Realty, which owns the track, sued Keen for defamation on the basis of that anonymous comment. Keen countersued, arguing that Ourway’s legal action had been filed for the sole purpose of stifling public debate and thus violated the state’s anti-SLAPP law. (SLAPP stands for “strategic lawsuit against public participation.”)

In the end, Keen — and the right of citizens to speak out — prevailed. Judge Patrick Brady of Norfolk Superior Court tossed aside the suit and awarded Keen nearly $25,000 to cover his legal costs, according to The Sun Chronicle of Attleboro.

“I’m happy that the court has affirmed affected citizens’ right to petition and make their voice heard in these community-changing debates,” Keen said in a statement released by the ACLU of Massachusetts, which helped represent him. “Residents should not be intimidated or bullied by deep-pocketed firms looking to quash their dissenting voice.”

Maine Department of Transportation: Keeping records about a controversial highway from the public view

A private developer has proposed a $2 billion, 220-mile highway connecting Calais to the east and Coburn Gore to the west — and all documents pertaining to the project are under seal. That’s because of a 2010 exemption to Maine’s right-to-know law that, as the Portland Press-Herald editorialized, “you could drive a truck through.”

Under the exemption, records about the proposed “east-west highway” will remain secret until the Maine Department of Transportation (DOT) decides whether to move ahead. This lack of accountability is an outrageous breach of the public trust. By rights, the officials responsible for writing and passing the 2010 exemption deserve the Muzzle. We’ll award it to the DOT as their proxy.

Fortunately, advocates of open government succeeded in undoing the worst of the 2010 exemption. On June 5, Governor Paul LePage signed legislation that maintains the legitimate need to protect confidential business information and trade secrets while subjecting most aspects of such partnerships to public scrutiny.

“Decisions about whom the government enters into partnership with and how officials spend our taxpayer money are certainly matters of public importance,” wrote Rachel Healy, communications director for the ACLU of Maine, in a commentary for the New England First Amendment Center.

The east-west highway is a controversial idea. According to the Associated Press, business owners this spring told the legislature’s transportation committee that the highway would cause them significant harm. They — and everyone in Maine — deserve to be treated with respect. A transparent process will provide that.

Rhode Island prison chief A.T. Wall: Prisoners have free-speech rights, too

Does a prison inmate forfeit his First Amendment rights? Yes, to an extent. But as US Magistrate Lincoln Almond patiently explained last September, an inmate who criticizes a prison policy that is applicable to other inmates and who provides them with relevant information — unlike a “personal matter of purely individual interest” — may indeed be engaging in protected speech.

Almond was aiming his words at the Rhode Island Department of Corrections (DOC), whose director, Ashbel T. “A.T.” Wall II, was fighting a lawsuit brought by Jason Cook, an inmate at the Adult Correctional Institute in Cranston. Cook claimed that after he complained to The Providence Journal in 2007 about a new policy that restricted reading materials an inmate could receive (which itself raised First Amendment issues and was later rescinded), prison authorities retaliated by taking away his kitchen job, trashing his cell, holding him in segregation, and subjecting him to strip-searches. The resolution of Cook’s lawsuit is still pending.

In defending itself against Cook’s lawsuit, the DOC argued, among other things, that Cook had no First Amendment right to speak to the Journal, thus prompting Almond’s finding. The DOC appealed. In February, US District Judge William Smith upheld most of Almond’s recommendations, including his finding that Cook did indeed enjoy some First Amendment protections.

“The DOC’s position that inmates could be disciplined simply for bringing prison conditions and policies to the public’s attention was extremely troubling,” said Steven Brown, executive director of the Rhode Island ACLU.

Convicted criminals, understandably, give up many of their rights when they are sentenced to prison. But it doesn’t and shouldn’t put them beyond the protection of the Constitution. A.T. Wall may not like it — but at least now he presumably understands it.

Massachusetts Superior Court Judge Peter Lauriat: Twitter emerges as a vital news tool — but not in this courtroom

 The courts remain our least open institution. Twitter has helped change that, as reporters are able to send updates throughout the day from inside the courtroom. For instance, a phalanx of media is now live-tweeting every moment of the Whitey Bulger trial.

Then there is Judge Peter Lauriat, who last winter presided over the case of Nathaniel Fujita, convicted in March of murdering his girlfriend. Lauriat had no problem with television cameras or even live-blogging — but he drew the line at Twitter.

According to Robert Ambrogi, a lawyer who is also executive director of the Massachusetts Newspaper Publishers Association, Lauriat initially banned Twitter from anywhere inside the Middlesex Superior Courthouse in Woburn. He later backed off and allowed tweeting from a separate media room, but not from the courtroom itself.

“The ban on tweeting drew the unavoidable question: What’s the difference?” asked Ambrogi. The answer is unclear.

David Riley wrote at the Wicked Local Blog that Lauriat was concerned that jurors were more likely to run across a tweet by accident than another form of media.

Jeff Hermes, director of the Digital Media Law Project, reported that Lauriat expressed doubts about the quality of journalism when reduced to 140-character updates, and about his inability to prevent attendees who had not registered as journalists from firing up Tweetbot on their smartphones.

None of these were good enough reasons to ban what has become a vital news medium. Lauriat acted as he did because he could. He shouldn’t have had that option.

Get ready for the 16th Annual Muzzle Awards

When The Boston Phoenix ceased publication in March, I started casting about for a new home for the Muzzle Awards — an annual Fourth of July round-up of outrages against free speech in New England that I began writing in 1998.

On Tuesday we made it official — the 16th Annual Muzzle Awards will be published on Thursday by WGBH News. I talked about the Muzzles on “Boston Public Radio” with Jim Braude and Margery Eagan. We gave a sneak preview of some of the “winners,” including U.S. Attorney Carmen Ortiz, Boston Police Commissioner Ed Davis and Maine Gov. Paul LePage.

The Muzzles will also be published in The Providence Phoenix and The Portland Phoenix, which are still alive and well.

I think WGBHNews.org will prove to be a good home base for the Muzzles. Boston civil-liberties lawyer Harvey Silverglate, who came up with the idea all those years ago, is continuing with his Campus Muzzles. Former Phoenix editor Peter Kadzis, who’s now at WGBH, was instrumental in bringing the Muzzles to the station and expertly edited them. Also playing key roles were Phil Redo, managing director of WGBH’s radio operations; Linda Polach, executive producer of “Greater Boston” and “Beat the Press”; and Abbie Ruzicka, an associate producer who handled Web production duties.

Like a phoenix rising from the ashes …

Edward Snowden and the peril facing journalism

Edward Snowden
Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times‘ potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Misplaced priorities at the Boston Police Dept.

Howard Zinn
Howard Zinn

Last October the Massachusetts chapter of the ACLU revealed that the Boston Police Department had been spying on left-wing activists such as the late Howard Zinn.

The police were working with the Boston Regional Intelligence Center (BRIC), a so-called fusion center through which the authorities could coordinate with the FBI and other agencies to find out who might be plotting a terrorist attack. Zinn, a peace activist, an elderly professor and World War II hero, was clearly someone to keep a close eye on.

Of course, we now know that at the same time the police were wasting their resources on Zinn, they were ignorant of what the FBI knew about Tamerlan Tsarnaev. Among those putting two and two together in the last few weeks were Michael Isikoff of NBC News;  Boston journalist Chris Faraone, who produced this for DigBoston; and Jamaica Plain Gazette editor John Ruch, who wrote an analysis.

Although it would be a stretch well beyond the facts to suggest that if the police hadn’t been watching left-wing and Occupy protesters they might have caught Tsarnaev, the BPD was certainly looking in all the wrong places. The police did a good and courageous job of reacting to the Boston Marathon bombings. The issue is how they spent their time and resources in trying to prevent a terrorist attack.

Spying on the antiwar left makes no more sense today than it did in the 1960s and ’70s. Police Commissioner Ed Davis needs to take a break from giving commencement speeches in order to answer a few questions.

And while I’m on the subject of questionable law-enforcement practices, I sure hope we find out what actually happened in Florida last week. Don’t you?

Targeting of the AP is neither new nor illegal. Just outrageous.

AP logoA lot of outrage has been generated over the Department of Justice’s secret subpoena of the Associated Press’ phone records, and I share that outrage.

But what the DOJ did was not new and not illegal — it was, rather, the latest example of overreach by an administration that has demonstrated its contempt for the role of a free press in a democratic society. Which, of course, makes the Obama White House no different from (though more zealous than) most of its predecessors.

Erik Wemple of The Washington Post explains by dredging up a similar, if less sweeping, case from years past, and in the process does a good job of showing why it matters. If the press can’t promise sources anonymity, it can’t perform its role as a check on government.

An editorial in The New York Times endorses a long-stalled federal shield law that would provide journalists with greater protections than they now have with regard to protecting confidential sources — a move that President Obama is now pushing for.

But what does Obama care? As the Times points out, such a law probably would have made no difference in the AP scandal, since all the DOJ would have had to do was invoke one of the exceptions built into the bill.

The next time you hear someone say that the DOJ’s actions violated the First Amendment, run the other way. A century’s worth of rulings by the U.S. Supreme Court holds that though the media have an enormous amount of protection under the First Amendment to publish or broadcast, they have no more rights than ordinary citizens when it comes to newsgathering.

Here is the Supreme Court in Branzburg v. Hayes (1972) explaining why it would be impossible to created a protected class of journalists who would enjoy an absolute right to protect their sources:

Liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

The reason that Eric Holder and company could secretly subpoena the AP’s phone records is because they can do it to anyone. It’s a matter not of the Constitution but of judgment — something the Obama administration has demonstrated very little of on this issue.

AP probe should be a wake-up call for journalists

Trevor TimmBy Trevor Timm

As part of a new leak investigation, the Justice Department has secretly obtained the call records for 20 phone lines owned by the Associated Press, which could put sources for as many as 100 reporters at risk. The AP called the move a “massive and unprecedented intrusion,” saying they “regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news.”

We agree. It’s time to stop looking at all of these leak investigations and prosecutions as ancillary to press freedom; they are a direct attack on it. This should be an important wake-up call for journalists.

While this incident has brought the Justice Department’s crackdown on leakers to a new extreme, it’s important to remember, this storm has been brewing for a while now. In five years, the Obama administration has prosecuted more leakers under the Espionage Act than all other administrations combined, and virtually all these prosecutions have engulfed journalists in one way or another.

As part of this current investigation, we’ve known the FBI has been data-mining government officials’ phone and email records for months, looking for links to journalists on a systematic scale. The Washington Post reported in January, the FBI is using new, “sophisticated software to identify names, key words and phrases embedded in emails and other communications, including text messages, which could lead them to suspects.”

According to the Post, “The FBI also looks at officials’ phone records — who called whom, when, for how long.” Anytime the FBI found a government official has contact with the unknown number of “particular” journalists, FBI agents were “confronting” officials with this information.

A similar leak investigation to the one that has engulfed the AP is aimed at New York Times sources for its investigation into secret U.S. cyberattacks. The government refused to comment if the Justice Department has gone to similar extremes with The New York Times’ phone lines.

Regardless, as The New York Times reported on its front page in August of last year, these leak investigations are “casting a distinct chill over press coverage of national security issues as agencies decline routine interview requests and refuse to provide background briefings.” The Huffington Post recently interviewed several of the nation’s most prominent national security journalists, all of whom confirmed it’s a perilous time for journalists who are reporting on what the government considers secret.

The Justice Department does not deny this. When asked about the Obama administration’s crackdown on leakers last June, a senior Justice Department (DOJ) official told longtime national security reporter Shane Harris that the DOJ is “out for scalps.” Harris’ DOJ source also “made it clear that reporters who talked to sources about classified information were putting themselves at risk of prosecution.”

And it may be about to get worse.

In another leak case, New York Times reporter James Risen has been fighting a subpoena from Obama’s Justice Department for years. The Obama DOJ is after his sources for a chapter in his book “State of War.” (You can read the incredible chapter at issue, about a spectacularly bungled CIA mission that allegedly handed nuclear bomb blueprints to Iran, here.)

The Obama administration inherited the case from the Bush administration, and despite the fact that the district court judge sided with Risen during both the grand jury and trial, DOJ has continued to appeal the case. Last May, the DOJ argued before the Fourth Circuit that reporters’ privilege does not exist at all for national security reporters. Disturbingly, the Justice Department said that Risen protecting his sources was “analogous” to refusing to testify about receiving drugs from a confidential source.

The Fourth Circuit Appeals Court decision could come down any day now, and it will undoubtedly be the most important press freedom decision in a decade or more.

And while it has curiously receded from national headlines, the Justice Department also still has an active grand jury investigation open against WikiLeaks for publishing classified information. If such a prosecution succeeds, it will be open season on media organizations that publish stories that touch on information the government considers secret, putting virtually every national security journalist at risk of prosecution.

In fact, the House of Representatives held a hearing just last July in which multiple congressmen openly discussed throwing New York Times journalists in jail for publishing classified information about secret cyberattacks and CIA drone strikes. By staying quiet about the WikiLeaks grand jury, journalists only increase this risk.

The White House press secretary was quick to state that the administration is “not involved in decisions” in the AP investigation and heard about it from the media. White House officials are under investigation for this particular leak as well, so that’s no surprise. But one should not forget: the White House created this war-on-leaks monster. Congress has only encouraged its expansion, instead of investigating the wrongdoing that many of the leaks exposed.

And now, it’s out of control.

Trevor Timm is co-founder and executive director of the Freedom of the Press Foundation. Republished by permission.