It’s time for the feds to stop hassling and spying on the press

FBI headquarters. Photo (cc) 2008 by zaimoku_woodpile.

Previously published at GBH News.

It was a move reminiscent of the post-9/11 Patriot Act, which allowed federal investigators to spy on the reading habits of library and bookstore customers in the name of fighting terrorism.

Last week we learned that the FBI had subpoenaed USA Today in pursuit of Internet Protocol addresses and other data. The goal was to help the agency figure out the identities of people who had read a story last February about a Florida shootout in which two FBI agents were killed and three were wounded. The subpoena specifically cited a 35-minute time frame on the day that the shootings took place.

Fortunately, USA Today’s corporate owner, Gannett Co., the nation’s largest newspaper chain, took a principled stand and fought the subpoena. On Saturday, the FBI backed down. There’s already little enough privacy on the internet without having to worry about the possibility that government officials will be looking over our shoulders as we’re reading.

We are in the midst of a systematic assault on the media’s role in holding the powerful to account. And it’s long past time for our elected officials to do something about it by passing legislation rather than relying on assurances by President Joe Biden that he’s ending these abuses. After all, Biden’s assurances can be undone by the next president with the flick of a pen. We need something stronger and more stable.

Barely a month ago I wrote about the revelation that the Trump Justice Department had spied on three Washington Post reporters’ phone records. I observed that Trump’s actions were in line with a long string of presidential attacks on the media, from Richard Nixon to George W. Bush to Barack Obama.

Since then, the revelations have come at a dizzying pace. In addition to the USA Today subpoena, which strikes me as especially egregious since it targets readers rather than journalists, there have been at least two other noteworthy instances of abuse:

• In late May, CNN reported that the Trump administration had secretly obtained 2017 email and phone records of Barbara Starr, a longtime reporter for the network. The period in question was June 1 to July 31, 2017.

• In a particularly noxious abuse of the government’s power, The New York Times reported several days ago that the Justice Department had subpoenaed Google for the email records of four Times reporters — and that, though the inquiry had begun under former President Donald Trump, it continued under Biden. As recently as March, the Justice Department obtained a gag order prohibiting Google from informing the Times. That order was later amended so that a few top officials at the Times could be told, but not executive editor Dean Baquet.

“It is urgent that we hear from the attorney general about all three Trump-era records seizures, including the purported reasoning behind them and the rationale for not notifying the journalists in advance,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, in a statement released last week. “The goal must be to ensure that such abuses never occur again.”

Compounding the problem is the widely misunderstood belief that government officials are violating the First Amendment. For instance, on CNN’s “Reliable Sources” this past Sunday, Adam Goldman, one of the four Times reporters targeted in the Google probe, said, “The U.S. attorney’s office in D.C. has a history of trampling on the First Amendment, so that’s why I wasn’t surprised. They treat the media, they treat newspapers like drug gangs.”

In fact, over the past century the Supreme Court has interpreted the First Amendment in such a way that the protections for news gathering are exceedingly weak.

Protections for publication and broadcast are strong, which is why the press has been able to report on secret stolen documents — from the Pentagon Papers to the Snowden files — with few concerns about facing prosecution.

But the court has ruled that journalists have no constitutional right to protect their anonymous sources. And with regard to the current string of spying revelations, the court has held repeatedly that journalists enjoy no special rights that would not be available to ordinary citizens.

President Biden recently pledged to end the practice of seizing reporters’ records, saying the practice is “simply, simply wrong.” Some observers questioned whether he actually meant it, since he’d be breaking not just with Trump’s abuses but with longstanding practice. That, in turn, led press secretary Jen Psaki to assure journalists that Biden planned to follow through on his pledge.

But what a president does, a future president can undo. To guarantee that the press will be able to perform its watchdog role, we need a federal shield law so that reporters won’t be compelled to reveal their confidential sources. Such protections — either by law or by court decision — are already in place in 49 states, with the sole exception being Wyoming.

We also need legislation that prevents the government from secretly spying on journalists’ online activities — and on readers’ activities as well.

No doubt opponents will insist that the government needs to be able to spy in order to keep us safe. But the Post, CNN and Times cases appear to involve the Trump administration’s politically motivated attempts to learn more about the origins of the Russia probe, including the activities of former FBI Director James Comey. The USA Today case did involve a much more serious matter. But after dropping its demands, the FBI told the BBC that “intervening investigative developments” made the information unnecessary.

Which is nearly always the case. Rarely does the government’s desire to interfere with the press’ role involve a situation that’s literally a matter of life or death. And the law can accommodate those rare instances.

In general, though, the government should go about its business without compromising the independence or freedom of the press.

Yes, Trump officials spied on reporters. But every president abuses the press.

Photo (cc) 2018 by Adam Fagen

Previously published at GBH News.

The revelation last week that the Trump Justice Department had spied on three Washington Post reporters’ phone records barely caused a stir. But as much as I’d like to think that such behavior would shock the conscience, I can understand why the story failed to resonate. It was, after all, the sort of thing that all administrations do. To invoke a pandemic cliché, it was a sign that nature is healing.

Not to sound cynical and world-weary. We should be outraged. We should be shouting from the rooftops. When the government uses its awesome legal powers to stymie journalists who are trying to do their jobs, we lose our ability to hold the powerful to account. The incident would stand as yet another example of former President Donald Trump’s authoritarian tendencies — except that, at least in this instance, his actions were right in line with those of his predecessors.

As Jon Allsop of the Columbia Journalism Review wrote, “it’s not ‘bothsidesism’ to call out loathsome things that both sides are actually doing.”

So what happened? Devlin Barrett of the Post reported last Friday night that the Justice Department informed current Post journalists Ellen Nakashima and Greg Miller and former Post journalist Adam Entous that their phone records had been obtained, and their email logs had been unsuccessfully sought, for mid-April through July of 2017. The phone records showed whom the reporters were in contact with but did not reveal the contents of the calls.

There are a few details that make this particular exercise of executive power especially disturbing. The three reporters were delving into the 2016 Trump campaign’s ties to Russia during the period in question. The records were sought in 2020, when the attorney general was Trump enabler William Barr. Thus the incident could be seen as part of Trump’s long-standing obsession with covering up his ties to Russian interests.

In other respects, though, it was business as usual.

I wrote a commentary in 2012 for HuffPost headlined “Obama’s War on Journalism.” It’s a matter of public record that Barack Obama, during his eight-year presidency, showed a shocking lack of regard for the role of the press in a free society. Obama and his attorney general, Eric Holder, were obsessed with identifying government officials who had leaked sensitive or embarrassing information to the press. One reporter, James Risen of The New York Times, was threatened with jail for several years.

The Obama years were extreme but not exceptional. Previously, then-Times reporter Judith Miller actually did a stint behind bars for refusing to cooperate with an independent counsel’s investigation into possible wrongdoing by officials in George W. Bush’s administration: Someone had publicly identified a CIA operative in apparent retaliation for an op-ed (oops, guest essay) her husband had written for the Times that accused officials of ignoring evidence contradicting their claim that Iraq was trying to build nuclear weapons.

At least in that case, Bush had nothing to do with the investigation that landed Miller in jail. But Bush hardly had clean hands. After the Times reported that Bush’s National Security Agency was illegally spying on Americans, Bush denounced the paper’s work as “a shameful act,” and people around him urged that the Times be prosecuted under the World War I-era Espionage Act. The Times won a Pulitzer Prize for its revelations.

Of course, Richard Nixon’s attempts to retaliate against the press were legendary, ranging from including hostile reporters on his “enemies list” to threatening to strip The Washington Post of its television stations.

A central dilemma in all of these cases is that though the First Amendment offers robust protections for anything that the media might publish or broadcast, it is relatively silent on protections for reporting. In Branzburg v. Hayes, the 1972 decision that reporters do not have a constitutional right to protect their anonymous sources, Justice Byron White wrote that “news gathering is not without its First Amendment protections.” As a general rule, though, reporters have no more protections in going about their jobs than do ordinary members of the public.

Will the situation improve under President Biden? Not likely. As the CJR’s Allsop pointed out, the Biden Justice Department didn’t just inform the three Post journalists that they had been spied upon — it went out of its way to endorse the practice. Marc Raimondi, a spokesman for the current Justice Department, was quoted in the Post’s account as saying that the department “follows the established procedures within its media guidelines policy when seeking legal process to obtain telephone toll records and non-content email records from media members as part of a criminal investigation into unauthorized disclosure of classified information.”

Raimondi added — shades of Obama and Holder — that “the targets of these investigations are not the news media recipients but rather those with access to the national defense information who provided it to the media and thus failed to protect it as lawfully required.”

With public approval for the media near record lows, and with the courts unlikely to carve out any new protections for journalism, it’s not realistic to think that things are going to change for the better any time soon.

At the very least, though, the president could issue guidance to his Justice Department, backed up with a strong public statement, that the government will not spy on, subpoena or prosecute journalists except under the most dire life-and-death circumstances.

Biden appears to be intent on breaking with his predecessors in many ways, especially regarding the size and scope of government. Respecting the role of the press would be one way that he could ensure greater scrutiny of that government on behalf of all of us.

NEFAC honors James Risen, a free-press hero

James Risen
James Risen

James Risen is a free-press hero. Whether he will also prove to be a First Amendment hero depends on the U.S. Supreme Court.

On Friday, Risen, a Pulitzer Prize-winning reporter for The New York Times, was presented  with the 2014 Stephen Hamblett First Amendment Award by the New England First Amendment Coalition (NEFAC), which is affiliated with Northeastern University. (I wish I’d been able to attend, but I was teaching.) Risen faces prison for refusing to identify an anonymous CIA source who helped inform Risen’s reporting on a failed operation to interfere with Iran’s nuclear program — a story Risen told in his 2006 book, “State of War.”

Both the Bush and the Obama administrations have pushed for Risen to give up his source, but Risen has refused. “The choice is get out of the business — give up everything I believe in — or go to jail. They’ve backed me into a corner,” Risen was quoted as saying in this Boston Globe article by Eric Moskowitz. Also weighing in with a detailed account of the NEFAC event is Tom Mooney of The Providence Journal.

My Northeastern colleague Walter Robinson, a former Globe reporter and editor, said this of Risen:

There’s no one anywhere on the vast landscape of American journalism who merits this award more than you do. It is hard to imagine a more principled and patriotic defense of the First Amendment.

Unfortunately, Risen has little in the way of legal protection. The Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not protect journalists from having to reveal their confidential sources. In addition, there is no federal shield law. Thus journalists like Risen must hope that the attorney general — and, ultimately, the president — respect the role of a free press in a democratic society sufficiently not to take reporters to court. President Obama has failed that test in spectacular fashion.

Risen has asked the Supreme Court to take his case, giving the justices an opportunity to overturn or at least modify the Branzburg decision. But if the court declines to take the case, the president should order Attorney General Eric Holder to call off the dogs.

The Stephen Hamblett Award is named for the late chairman, chief executive officer and publisher of The Providence Journal. Previous recipients have been the late New York Times columnist Anthony Lewis, then-Boston Globe editor Marty Baron (now executive editor of The Washington Post) and Phil Balboni, founder of GlobalPost and, previously, New England Cable News.

More: On this week’s “Beat the Press,” my WGBH colleague Margery Eagan paid tribute to Risen in the “Rants & Raves” segment.

28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

SHOP TALK AT THIRTY
Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Screen Shot 2013-09-23 at 7.27.12 AMEvery few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that 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.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.

John Sununu’s muddled shield-law soliloquy

Good luck making sense of John Sununu’s column in today’s Boston Globe about efforts to enact a federal shield law, which would allow journalists greater leeway in protecting their sources.

First he asserts that “our Constitution’s First Amendment already offers the press unequivocal protection,” seeming to position himself as an absolutist on the matter. He does not mention what he plans to do about Branzburg v. Hayes, the 1972 Supreme Court ruling that the First Amendment does not, in fact, include a shield privilege.

Ah, but no so fast. Farther down, Sununu pulls a switcheroo and argues that a shield law might encourage irresponsible journalism:

By protecting and encouraging the use of anonymous sources, the law may encourage a cavalier approach to checking multiple sources or leaking sensitive information. It could also provide unwarranted protection to government or private-sector workers using anonymous leaks to undermine their supervisors.

So which is it? We don’t need a shield law because the First Amendment already allows journalists to protect their sources? Or we don’t need a shield law because journalists shouldn’t be allowed to protect their sources?

It’s pretty hard to agree or disagree with a columnist when you can’t figure out what he’s trying to say — or, as I suspect is the case here, when he has no idea what he’s writing about. Just a mess.

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.