A 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.
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 alltheseprosecutions 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’ privilegedoes 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.
The Cohasset selectmen have backed away from their plan to subpoena The Patriot Ledger of Quincy and its sister paper The Cohasset Mariner in an attempt to find out whether town employees have been posting offensive anonymous comments to the two papers’ websites, according to a report by Patrick Ronan.
The papers are part of the GateHouse Media chain.
Still at issue is a former selectman who’s pursuing a libel action against two anonymous commenters, and who subpoenaed the Mariner in an attempt to find out who they are. According to an article published on the Ledger and Mariner websites, the papers turned over the information as requested.
According to Ronan’s story, town officials have decided to wait and see if the libel suit reveals that any of the comments in question were posted from town computers.
Something very strange is going on in Cohasset, according to The Patriot Ledger of Quincy and an affiliated weekly, The Cohasset Mariner.
The Cohasset selectmen, according to reports in both papers, are engaged in a snipe hunt to ferret out the identities of anonymous commenters to the Ledger and Mariner websites. The papers are owned by GateHouse Media, a national chain that owns about 100 newspapers in Eastern Massachusetts and publishes websites under the name Wicked Local.
Town officials have gone so far as to consider a subpoena to the two papers to force them to turn over the IP (Internet Protocol) addresses of some particularly unhinged commenters to see if they are using government-owned computers at town hall. (Each computer on the Internet has a unique IP address.) Such activities, the selectmen say, would violate town policy.
Last Thursday, the selectmen canceled a meeting when their lawyer was unable to produce a draft subpoena for their consideration. But, in a parallel action, the Mariner has reportedly received a subpoena from a former selectman who has filed a libel suit against two anonymous commenters. In a sidebar to a Ledger story that also appears on the Mariner site, there is this:
GateHouse Media has complied with the subpoenas to the Cohasset Mariner and released the IP address and emails related to those screen names in accordance with its privacy policy.
There’s a lot going on here, but let me offer a few observations.
• The selectmen are way out of line in even thinking they can demand that the newspapers turn over identifying information so that they can punish their own employees. I hope GateHouse officials will stand firm if they receive a subpoena demanding such information.
• The libel suit is an entirely different matter. Under federal law, website operators are not liable for content posted by third parties such as anonymous commenters, according to the Digital Media Law Project. But the commenters themselves are not immune from libel suits or other actions, and website operators may be compelled to help those bringing suit find out who they are. It doesn’t sound like GateHouse did anything out of line in turning over IP and email addresses, though I would certainly like to know more.
• The First Amendment is one thing; best practices are another. Though GateHouse has every right to let anonymous commenters vent in public, such behavior has an effect on the newspapers’ brand and reputation. GateHouse should put an end to anonymous comments (as Media Nation did several years ago) — or, at the very least, screen all comments for taste, offensiveness and libelous content before allowing them to be posted.
Finally, though GateHouse reporter Erin Dale seems to be doing a good job of covering her employer’s own story, this cries out for some outside scrutiny. I’d love to see The Boston Globe dig into this.
Tom Scholz, founder of the band Boston, lost his libel suit against the Boston Herald on Wednesday. Suffolk Superior Court Judge Frances McIntyre ruled that the Herald’s reporting on what drove Scholz’s former bandmate Brad Delp to suicide was a matter of opinion, which is protected speech under the First Amendment. Boston Globe coverage here; Herald coverage here.
Delp killed himself in 2007, and the Herald’s “Inside Track” gossip columnists, Gayle Fee and Laura Raposa, subsequently reported that Delp’s ex-wife Micki Delp blamed his death on his falling-out with Scholz. I have not had a chance to read McIntyre’s decision, but according to the news coverage, she ruled that Micki Delp could not prove that she did not make that statement, and that, in any case, what led to Brad Delp’s suicide was a matter of opinion.
Scholz is reportedly considering an appeal. I hope he won’t. On the face of it, McIntyre’s decision seems like a sound one. As a public figure, Scholz would have to prove the Herald knew that its report was false, or that it strongly suspected it was false and published it anyway. By citing the opinion privilege, McIntyre removed the dispute beyond the realm of fact and into an area of speech that enjoys full constitutional protection. Enough.
The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.
Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”
Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.
Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.
Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.
Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.
In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.
Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.
Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.
“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”
Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.
As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.
Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.
Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.
Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.
Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.
OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.
In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.
Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.
I think it’s very difficult for the city’s top elected official to go after a person, a company or some other organization without making it sound like a governmental threat.
Nevertheless, Mayor Tom Menino’s letter imploring Chick-fil-A to stay out of Boston (via Universal Hub) does a reasonably good job of getting his point across while acknowledging that he’s only expressing his personal views.
If you read between the lines, he seems to back off a bit from what he told the Boston Herald: “Chick-fil-A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”
Meanwhile, Gizmodo reports that Chick-fil-A’s homophobia-induced meltdown continues.
Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.
In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.
The request will be heard by a single justice of the SJC.
According to OpenCourt:
As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A. Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….
Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await single justice review.
Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM), from posting archives of its livestreamed footage, a move that was shot down by the SJC.
Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.
There may be more to say later, but I want to offer a few quick thoughts on Mayor Tom Menino’s declaration that he intends to keep Chick-fil-A out of Boston because of the company president’s opposition to same-sex marriage, as reported by Greg Turner of the Boston Herald.
Chick-fil-A has long been at odds with the LGBT community. But things got a lot worse this week, when company president Dan Cathy said, according to the Washington Post, that “we’re inviting God’s judgment on our nation when we shake our fist at him and say we know better than you as to what constitutes a marriage.”
That brought this response from Menino: “Chick-fil-A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”
My gut reaction is that Menino is wrong. It seems to me that there wouldn’t be any end to this if government officials decided to approve or reject business licenses on the basis of their executives’ religious or political beliefs. There are First Amendment issues at stake as well. Can’t the head of a company say what he thinks without risking the wrath of the government?
Starbucks, as you no doubt know, has earned a lot of praise for its support of gay civil rights. There are plenty of municipalities out there whose officials might be tempted to deny Starbucks the right to operate inside their borders. And they could point to Menino for support.
Earlier this year my employer, Northeastern University, disinvited Chick-fil-A from opening in the student center after a number of people protested. I was among those who signed an online petition asking to keep Chick-fil-A off campus. But I see a huge difference between voluntarily inviting a business to operate on your private property, as would have been the case at Northeastern, and acting to keep a business off someone else’s private property, as Menino proposes to do.
Chick-fil-A has a serious issue on its hands, and it may well have to do some damage control that goes beyond the cosmetic. The San Jose Mercury News reports that residents in Mountain View, Calif., want to keep the chain out of their community. And we can expect to see a lot more of that.
Menino actually missed his best argument for keeping Chick-fil-A out. Restaurant executives apparently want to open in a tourist-heavy area along the Freedom Trail. If I were doling out food licenses in Boston, I would be very reluctant to hand over such a prime location to a business that is closed on Sundays.
A 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.
There may be more to say later, but I want to offer a few quick thoughts on Mayor Tom Menino’s declaration that he intends to keep Chick-fil-A out of Boston because of the company president’s opposition to same-sex marriage, 
